*1 A. No. 19729. Bank. June [L. 1946.] KENNETH L. al., DANSKIN Petitioners, et v. SAN
DIEGO UNIFIED SCHOOL al., DISTRICT et Re spondents.
A. L. Wirin and J. Tietz for Petitioners. B. (San Diego), Whelan, Attorney District and Car-
Thomas Attorney, for Smith, Deputy roll H. Chief Trial District Re- spondents. Ring Respon-
William as Amicus behalf C. Curiae dents. *3 of the
TRAYNOR, J. and officers Petitioners members Diego the Amer San Liberties affiliated with Civil Committee January 10, they filed ican Liberties Union. On Civil of the for the use application respondent with board a High for series of Junior School Auditorium Roosevelt Rights in Post meetings general “Bill of on the theme of the Judge include the late Speakers America.” were to war Angeles, Superior Col Beardsley of the of Los John Court Attorney of Carlson, Whelan, District onel Thomas Evans F. George Baird, R. Commis Diego County; United States San Winters, Rev sioner; Radcliff, Edward Dr. W. P. Reverend herein, Danskin, petitioners one of the Kenneth L. erend had Novotny. December, the board and Clarence govern use of school regulations and adopted rules In their as a civic center. public purposes and property for comply they not would ápplication, petitioners stated in were *, 20 11, 17 and claimed 4, 7, with rules provide: rules *These meeting o-r no 8271 Education Code Pursuant to Section “4. to reflect permitted property will be on the school held entertainment (Ed. Code, 19431- Act only Center §§ of the Civic not violation January rights.' On constitutional 19439), but of granting permission adopted a resolution 1946, the board upon the sole condition the auditorium petitioners to use and subscribe signed application who persons that the following oath: the board file with say: sworn, on oath being duly first “I, ., . . Diego Commit- Civil Liberties of the San
“I am member a Branch the Southern California tee affiliated with applicants one of the Union and Liberties American Civil a High auditorium for School Roosevelt Junior for use of March 25th, February 22nd, January meetings on series of June 1946. 26th, May 24th, and 22nd, April organi- any I with am not affiliated “I advocate and do not object one of its ob- or has as its or advocates zation which present Government of the United jects the overthrow violence, other unlawful by force or or any or of State ’’ means. this condition on the comply with refused to Petitioners only Act the Civic Center but grounds that it violates States and the Constitution of the United the Constitution color, race, of their any way of the United States because upon citizens or creed. " reasonably may require Governing that it be furnished Board 7. The copies speeches complete program, with all in advance addresses proposed given any to be school script of entertainment program will reasonably copy demonstrates that the property. If such per rules, proposed use shall not be or of these be in violation of law mitted. " granted in facilities will be accordance to use school Permission 11. time from charges adopted the Board of Education with a schedule may application. obtained on Copies of same to time. " for using property organization Any group or school individual 17. Diego School purposes hold the San Unified or other shall Civic Center thereof, all Board, Governing individual members District, its loss, officers, agents employees free and harmless District expense during caused liability, arise damage, any way by cost property. occupancy of school such use " non- receipt permit Upon of notice that has been issued 20. desig ehafge shall agency use, principal of the school *4 during building, charge regular employee open nate a employee School District use, building after the use. The and to close meeting any upon building grounds, or which charge or within in may necessary these empowered all outside of the means enforce held, is to take requires regular hours If rules. the use service per $1.00 assignment, rate of employee’s shall be reimbursed at the he any $2.00.” opening hour a minimum for Respondent grant California. board refuses to the use of the petitioners except upon By auditorium to this condition. proceeding petitioners this compel mandamus seek to re- spondent grant permission board to them to use the audi- torium free this condition. (Ed. 19431-19439) Code,
Under the Act Civic Center §§ governing grant school must the free boards of districts purposes specified of school for the in sec- use auditoriums Code, tion 19431 provides: of the Education “There building every public civic center at each and school grounds citizens, parent-teachers’ within the State where Boy troops, organ- association, Campfire Girls, Scout farmers’ recreational, izations, clubs, edu- and associations formed cational, artistic, political, economic, or moral activities of may engage supervised recreational school districts time activities, they may discuss, meet and and where subjects questions which time, they desire, any as educational, political, judgment appertain economic, citizens of the artistic and moral interests ’’ communities in which reside. 1213) pro- (as by Stats. ch.
Section amended organ- “Any use, individual, society, group, or by any vides: objects, object its or is ization its or one of which has as organization any society, or which has group, affiliated with advocacy object objects the or as its or one of its overthrow government form of present of the overthrow of violence, force, or other by or United States of the State or granted, permitted, suffered. means shall not be unlawful any organization, which affiliated with “Any person who is objects object the over- or for its or one its advocates has any or government the United States present throw the thereof, force or violence Territory, State, or Possession any organization persons means, or or other unlawful objects the object one of its for its or has which advocates United States government of the overthrow of thereof, force or vio- or Possession any State, Territory, means, hereby declared to be other lence or unlawful characterized, element. subversive chapter, this terms of “Notwithstanding other any grant the use of governing board shall no such is a or which organization who any person property defined. as herein element subversive governing determination purpose “For *5 board whether or not person organization such or such of persons applying for the of school-property, use such is a defined, governing subversive element as herein such board may require making delivery governing and to such board, such by person any organization, or such members of in prescribed by board, affidavits form governing such stating showing organi- facts or person whether not or such zation is subversive element as herein defined. hereby provision
“Reference is made law relat- ing perjury punishment applica- and the shall therefore making ble persons delivering provided and affidavits ’’ under chapter. of this Pursuant provided to this section the board has in its rules regulations and occupancy prop- that “No or use school by erty permitted will be any element defined subversive as in section purpose aiding Education For Code. in person the determination of or any organi- not whether or zation applying property for use is a subversive ele- ment, Governing Board require its discretion making it, delivery by person such member of organization, such or any speaker, of ap- affidavits in form proved County Attorney stating the District Counsel, showing facts person organization whether or not ’’ speaker as subversive element defined in said section. arbitrarily Petitioners contend that the board acted re- quiring affidavits, ground them to on file that are law-abiding organization known as and their citizens is known important organization as an purposes civic are whose rec- ognized as useful the President of the United States and during years five last no one has heretofore been re- quired required petitioners. to furnish the affidavits Sec- ' tion 19432 as it now reads is based on amendment Code, on September 15, Education which became effective 1945. Before that date the did contain defini- section provisions concerning tion of a subversive element or filing regulations of affidavits. The rules of the board December, 1945, were adopted and the affidavits re- were quired petitioners January 15, If the 1946. section is reasonably valid, pro- it is clear the board acted when it conformity legisla- vided for affidavits in its rules in with the change tive recent amendment. In view of the the statute past years during appli- immaterial five other validity required cants to furnish were not affidavits. upon regulation depends validity therefore sec- tion 19432 of the Education Code. violates contend that this section on its face
Petitioners assembly guaranteed peaceable speech freedom of and of by the United and the Constitution Constitution of California. assembly peaceable are
Freedom protected by the First Amendment of the Constitution of the Congress. against They infringement United States *6 in against Fourteenth Amendment protected likewise the fringement (Thomas Collins, Legislatures. v. 323 by state 315, Jonge v. 516, 430]; 530 89 L.Ed. De Ore U.S. S.Ct. [65 gon, 353, 278].) 364 81 L.Ed. 255, 299 S.Ct. How U.S. [57 Legislature regard certain reprehensible ever a convic they them affiliations, present tions it cannot forbid if or danger bring present “no clear and that will about Legislature right pre has a substantive evils” degree.” (Schenck question proximity “It a and vent. is 47, 247, L.Ed. States, v. 249 52 S.Ct. 63 United U.S. [39 Supreme alive to the dif The United States Court has been dangers ones, negligible and substantial ference between Bridges dangers immediate ones. v. between remote and 190, 261 86 it California, 252, 192], S.Ct. L.Ed. U.S. [62 concurring said in “As Mr. Justice Brandeis his declared: 357, 374 Whitney California, in opinion v. U.S. [47 yet fixed the 641, 71 L.Ed. ‘This court has S.Ct. 1095]: danger determine a shall be which to when standard yet danger may be remote be clear; deemed how present danger’ ‘clear and present.’ deemed Nevertheless guidance practical afforded language Schenck case has scope of great variety in constitutional in of cases which a expression in It has been freedom of was issue. protections of pass in majority minority of this Court either a utilized espionage under constitutionality convictions ing upon v. United States, supra; Abrams v. United acts, Schenck a L.Ed. under 17, 63 States, 250 S.Ct. U.S. [40 Whitney California, supra; under act, v. syndicalism criminal supra, Lowry, U.S. Herndon v. act, an ‘anti-insurrection’ 1066)]; and for breach (57. 732, 81 L.Ed. S.Ct. Connecticut, supra, law, v. Cantwell at common peace 1352)]. 1213, 128 A.L.R. (60 84 L.Ed. S.Ct. suggested that ‘clear have also very recently we And determining in guide appropriate danger’ present constitutionality upon expression restrictions where sought prevented by substantive evil to be restriction ‘ property, destruction of life or invasion Alabama, v. privacy’, Thornhill 310 U.S. Moreover, likelihood, great, however 1093]. justify cannot re a substantive evil will result alone press. upon
striction freedom of The evil itself concurring Whitney ‘substantial’, J., must Brandéis, California, 374; supra, 274 it be ‘seri page U.S. at must ous’, id. 274 page expression U.S. at 376. And even the ‘legislative preferences minor or beliefs’ cannot transform annoyance matters of inconvenience or into substan weight tive evils of sufficient to warrant the curtailment of liberty expression. State, Schneider v. finally emerges What 155]. danger’ present working principle ‘clear cases is extremely the substantive evil must be serious and the
degree imminence extremely high before utterances can punished.”
When
Bridges
the United States
Court held in
supra,
California,
suppression.
that the
of freedom of speech
danger
the absence
a clear
of substantive
evils
violation
guaranty
the constitutional
of free
speech,
adopted
the views of Mr. Justice Holmes and
Mr.
minority opinions
Justice Brandéis
Gitlow
*7
York,
New
268
652,
U.S.
672
69
625,
L.Ed.
[45 S.Ct.
v.
Whitney
California,
357,
274 U. S.
372
641,
S.Ct.
71
[47
1095],
L.Ed.
opinions
and other cases. These
were based
reasoning
on the
advocating
that doctrines
the overthrow of
government
by force do not of themselves constitute a
danger,
substantial
justified
that the state is therefore not
suppressing
in
the freedom of speech of those
happen
who
organization
to be
members
committed to such doctrines.
Bridges
In the
language
case the court referred to
in the
opinions
justices
amplify
of those
its
statements as follows:
‘‘Restatement of
phrase
danger’
‘clear and present
in
other
infrequent.
terms has
Compare,
been
however:
‘the
applied
test
possible
...
is
the remote
effect’.
Brandeis, J., dissenting in
States,
v. United
251
Schaefer
486
466,
259,
U.S.
S.Ct.
544 pressing purposes that im
with the law cm lawful required country’. Holmes, J., mediate check is save the dissenting States, United 250 616, in Abrams v. U.S. 630 17, suppression justify 63 L.Ed. : ‘To S.Ct. [40 1173] speech ground must that free there be reasonable seri fear speech practiced. evil if must be ous will result is There danger ground apprehended that reasonable to believe is Brandeis, concurring Whitney California, J., imminent’. v. 1095], 357, 641, 274 376 71 L.Ed. The italics U.S. S.Ct. [47 (314 also, Collins, 262, 5; see, Note Thomas v. are ours.” U.S. 89 516, 315, 430].) 323 U.S. 527 It follows S.Ct. [65 Legislature makes convictions principle from this striking at a condition of free affiliations something present danger. (See, West less than clear and Barnette, 319 640- Virginia Bd. v. U.S. State Education 674].) A.L.R. 642 S.Ct. 147 [63 of the Education 19432 contended that section Syndicalism merely supplements California Criminal Code Deering’s Laws, 8428), (Stats. p. 281; Gen. Act Act constitutionality upheld of which was United (Whit and the courts of this state. Court Steelik, People v. California, supra, 357; ney v. U.S. 78]; People Malley, Cal.App. v. P. [194 Cal. Cal.App.2d 687 P.2d 48]; People Chambers, v. P. of that upholding constitutionality 746].) The decisions Whitney California, supra, must act, however, particularly light Supreme Court’s the United States now be read Penne- California, also, holding Bridges supra, (see, - - 1029, 90 L.Ed. Florida, kamp v. Collins, -], (June 3, 1946); Thomas look to must therefore 315, L.Ed. One and Holmes concurring opinion Brandéis of Justices in that why applied act case for the reasons Whitney Applying the clear and constitutional. case was concurring Brandéis, J., in his danger said to the case test suggestion in the “I to assent to am unable opinion: party, assembling political with a opinion of the Court desirability revolution proletarian a advocate the formed to necessarily future, in the far date action at some mass pres- In the Amendment. Fourteenth not a within the *8 tended to testimony which however, there was ease, other ent In- part on the conspiracy of a the existence establish World, present serious commit Workers of ternational crimes; likewise, conspiracy would to show that society of Miss activity which furthered Whitney a member. these was Under circumstances the judgment of the state court cannot be disturbed.” Syndicalism applied only Criminal Act can thus when advocacy danger there is imminent that the doctrines give rise prohibit it seeks to to evils that the will state constitutionally prevent. act cannot be follows that the supplemented by provision even is not directed against specifically advocacy revolutionary doctrines, suppress speech assembly any subject but which would merely of such the advocates doctrines or those who affiliated with such advocates. Since state cannot suppress expression except free in the presence of clear and present danger, it cannot enforce a precautionary measure deny assembly political would to those whose disapproves. creeds it why inquire
One question must the measure seeks prohibit holding meetings “subversive elements” from building, presumably they when can hold them else arousing consequences. where without fears of baneful Is it suppose meetings reasonable to that would be harmless quality elsewhere would take on a sinister a school build ing? deeper When one searches for reason moti the prohibition meetings, vates of such there is escaping no Legislature the conclusion that the denies access a forum building in a school elements,” to “subversive not because it public meetings believes that their would create a clear and present danger community, it but because believes the privilege of assembly building in a school should be de nied to those whose convictions and affiliations it does not tolerate. What it does it seeks to tolerate censor. duty
The state is under
buildings
no
to make school
public meetings.
(See
available for
A.L.R.
47 Am.
344.)
so,
Jur.
If
however,
it elects to do
it
arbitrarily
cannot
prevent any
public
holding
members of the
such meet
ings.
(Missouri
Canada,
ex rel. Gaines v.
232,
546 even, ing privilege though privilege a is the of use state (Frost property. California, v. Railroad Commission 271 of CIO, 70 583, 605, Hague 594 v. 1101]; U.S. S.Ct. L.Ed. [46 496, 1423]; 515 S.Ct. 83 L.Ed. Murdoch v. 954, 307 U.S. [59 Pennsylvania, 105, 870, 319 110-111 87 891, U.S. S.Ct. [63 Rights L.Ed. 146 A.L.R. brief of see the the Bill Hague American Bar Committee Association filed CIO, supra, v. reprinted in American Bar Association 74.) Journal, 7, 8, compel
Since state cannot “subversive elements” directly affiliations, to renounce their convictions it can receiving make such a renunciation a condition of not privilege assembly building. in a of free Such con a foreign as unconstitutional as the condition that a dition is privilege doing pay a tax for the corporation business constitutionally imposed (West could not otherwise it Kansas, Telegraph ern Union Co. S.Ct. agree 355]), 54 S.Ct. abstain from resort federal Co., (Terral v. Burke 257 U.S. courts Construction 352]), public or the that a S.Ct. L.Ed. condition necessity public carrier convenience and obtain a certificate (Frost using v. Railroad Commission before roads. 583.) California, supra, 271 U.S. privilege question parallel between There In Hanne using cost. privilege the mails at less than 456, 461, gan Esquire, Douglas speaking declared: -], court Mr. Justice immediately raised questions are grave “But constitutional privilege mails is a once is said that the use grounds whatsoever. or withheld on may be extended and Mr. Justice Mr. Brandeis dissents of Justice See the Democratic Milwaukee Social in United ex rel. Holmes Publishing 430-432, 407, 421-423, Burleson, 255 U.S. Co. Under that view the 704]. certain granted on condition that class rate could be second The provi disseminated. ideas not be political economic ex more have to be far would Fourth condition sions of the Congress radical made plicit assume that for us to clothe the undertook traditions and departure our the tastes supervise power Postmaster General Mr. dissent of country.” reading public of re court Burleson ease to which in the Justice Brandéis through “Congress not Esquire ferred in case stated: police power postal put upon its limitations freedom the press directly attempted which if would be unconstitutional. parte ‘Liberty Ex This court also stated in Jackson that circulating liberty pub- essential to that freedom as lishing ; indeed, circulation, publication without the would ’ argued although little value. newspaper mail, liberty is barred from the second-class of circulation is denied, because the first third-class mail and also transportation other open publisher. means left to a rights away argu- Constitutional should not be frittered ‘ ments technical so and unsubstantial. The Constitution deals *10 substance, not shadows. Its inhibition was leveled at ’ thing, (Cummings the Missouri, not the name. Wall. 356].) might, course, The Government of altogether decline newspapers; might to distribute itor decline carry any to at less than the service; the cost of and it would thereby abridge not press, the freedom of the since to all papers transportation other means of open. would be left carry to newspapers generally But at sixth of a the cost of deny and to service paper that service to one of the same general character, because to the Postmaster General views expressed past therein illegal, seem prove would an censorship abridge effective seriously and expres- freedom of (255 sion.” 407, 430-431.) The convictions or requests affiliations of one who the use of building a school as a forum are of no more concern to the school superintendent administrators than ato parks if green streets the forum is place. or the market The speech ancient to free public parks and streets can not be made conditional upon permission public of a official, permission if that is used as “instrument of arbi trary suppression (Hague expression.” CIO, of free In Porterfield, re ante, 91, P.2d is true" that the state open building need not the doors a school as a forum and any time opens doors, at chooseto close them. Once it however, it demand cannot tickets admission in the form and it acceptable. convictions affiliations that deems Cen sorship building of those who would use the as a forum setting. cannot be rationalized reference to its School blackboards, lights, desks and like trees or street are but the meeting trappings forum; imports what of minds meeting place. and not the very purpose interchange of a is the forum
ideas, purpose and that cannot be a frustrated censor ship label and sus would certain convictions affiliations pect, denying privilege assembly hold those who them, granting but it those whose convictions and affilia happen their amplifying tions and in acceptable effect privilege by making special competitive it a one. struggle acceptance they great a ideas would have strategic advantage making themselves known heard and a forum competition where the had been diminished sup censorship, very intensify their freedom would pression for the of those condemned to silence. It is not censoring state to control the a forum by influence of ideas, proponents, audience; could, if assembly freedom which is the would be life democratic community censorship stilled. dulling And effects quickening live are more to be feared than the influence of a interchange of ideas. prohibit
If it is unconstitutional for the state to persons or groups certain classified as “subversive elements” assembly exercising rights speech from at free assemble, it is places speak where others are allowed require proof persons unconstitutional fortiori “If groups not elements. subversive can rights assembly exercise of the of free crime, accomplished not think can be be made we do this condi requiring previous registration as a by the device *11 exercising making and a condition tion for them such for restraining in their exercise and foundation for advance violating restraining a order. imposing for such penalty a rights of long than the exercise So involved as no more re assembly, immune a speech to such of free free and 516, 540 (Thomas Collins, 323 U.S. striction.” v. [65 Minnesota, 283 U.S. 315, 430]; see, also, Near v. In case present 625, L.Ed. 713 75 [51 facilitating requirement, registration be a reasonable would censorship imposing meetings of and no the administration convic Requirement proof one’s proponents. on the exercising affiliations, as condition however, tions and compel assembly, would speech rights of free and or un by were unable rights those who those a forfeiture of acceptable. willing proof was submit required like that affidavit an Respondents contend that
549
petitioners
is similar to the test oath held constitutional
Wright,
parte Yale,
v.
24
in Cohen
Cal.
and Ex
Cal.
62],
question
Am.Dec.
The
a test oath is a
whether
[85
permissible
pertinent only
can
proof
proof
mode of
when
constitutionally
required. Moreover,
these eases related
litigants,
requiring
statutes enacted after the
War
as a
Civil
condition
in the courts of this
maintenance
actions
state,
attorneys,
practice,
condition to admission to
disclaiming any
file
participation
affidavits
the Civil
War on the
side
the Confederate States. Similar statutes
by
were held unconstitutional
United
grounds
they
post
Court on the
were ex
laws
facto
bills
they
of attainder and that
presumptions
“subvert
innocence,
evidence,
and alter the rules of
hereto-
which
fore,
universally recognized
under the
principles of
com-
law,
supposed
mon
been
have
fundamental and un-
changeable. They
parties
assume
guilty;
they
upon
call
parties
innocence;
to establish their
only
declare that such
can
way—
innocence
be shown
in one
inquisition
expurgatory oath,
in the form of an
into
parties.”
(Cummings
Missouri,
consciences
v.
(U.S.) 277,
Wall.
Ex
356];
parte Garland,
[18
(U.S.)
Wall.
L.Ed. 366].)
[18
clearly
The
distinguishable
case is
from Communist
Party
Peek,
v.
There is analogy a close case between and the suppression public by meeting of a criminal prosecution, held in Jonge Oregon, invalid De case a defendant was convicted 278]. of vio lating Oregon an statute similar to the California pro act hibiting criminal syndicalism, which provision contained a as that, construed made court, state it a crime to pre side over or in participate public meeting a held under the auspices organization of an advocating syndicalism, criminal though meeting even to was not devoted advocacy syndicalism. criminal The United States Court was not concerned with constitutionality Oregon of the crimi nal syndicalism statute as a whole had to only but determine whether, if even its other were constitutional, operation could be precautionary secured a measure like in question. one Speaking court, for the Mr. Chief Justice Hughes stated: “While states are entitled protect them selves privileges abuse our institutions through attempted in substitution of force and violence place political action in to effect peaceful order revolu changes government, go
tionary none our decisions length sustaining right a curtailment of Oregon speech assembly free statute demands speech . . present application. its . Freedom of and of rights safeguarded by the press are fundamental process due Amendment the Fed clause of the Fourteenth assembly right peaceable eral . . . The Constitution. right press cognate a and free and is to those in United equally fundamental. As court said this Cruikshank, very : ‘The idea 588] right government, form, on the republican implies part peaceably citizens meet for consultation re its griev spect petition and to redress of affairs ances/ Constitution The First Amendment Federal abridgement expressly guarantees against Con *14 argue gress. explicit mention does not exclusion But there right For that cannot be denied with elsewhere. one violating principles liberty jus out fundamental and those political all institu tice lie at the base of civil and which tions—principles the Fourteenth Amendment embodies process Hebert general of its clause. terms due 270]; 312, 103, 71 L.Ed. Louisiana, 272 U.S. S.Ct. 158, 55, 77 L.Ed. Alabama, 45, 287 U.S. S.Ct. Powell Grosjean v. U.S. 84 A.L.R American Press Co. [297 may supra. rights (56 660)], L.Ed. These S.Ct. assembly by using speech in order to incite to be abused through Legislatures people and crime. The violence against legis But the may protect themselves abuse. only justification find constitutional lative intervention can rights must not by dealing with abuse. The themselves importance safeguarding the greater be curtailed. The of our insti community from the overthrow incitements to imperative violence, the more by force and tutions rights of free constitutional preserve need inviolate the assembly in free order to maintain speech, press free and discussion, gov to the end that opportunity political for free and that may people the will of the responsive be ernment may by peaceful means. desired, changes, if be obtained very security Republic, foundation Therein lies meetings holding . . . government. of constitutional proscribed. Those who action cannot be peaceable political for meetings cannot be branded such in the conduct assist rights of question, if the free criminals on that score. The preserved, is not as peaceable assembly are to speech meeting held but as to its auspices under which the to the speakers, but whether purpose; not as to the relations speech the bounds the freedom their utterances transcend assembling protects. persons If the which the Constitution they elsewhere, if have formed or are committed crimes have order, against public peace and engaged conspiracy in a conspiracy other viola prosecuted for their different matter when tion of laws. But it is a valid - offenses, them for seizes State, prosecuting instead assembly and a lawful upon peaceable mere in a participation charge. We are the basis for a criminal discussion as findings court as upon to review the of the state called Party. Notwithstanding objectives of the Communist enjoyed his objectives, personal defendant those still having assembly speech part peaceable and to in a free take (299 although party.” U.S. purpose, lawful called 353, 363-366; also, Minnesota, supra, Near v. see, 716; Lowry, Herndon v. 1066]; Stromberg California, 283 U.S. distinguished Jonge ground on the The De case cannot be statute, criminal while in the that it involved a the statute sought assembly suppress speech free and free case deny permits board to requiring administrative meetings objects disap- and affiliations are of those whose sought proved. suppress each case the state sought assembly accomplish immaterial that it it is objective punishment in the one case threat of *15 Minnesota, by censorship. (See Near v. the other U.S. Alabama, 1357]; Thornhill v. 697, 625, 75 L.Ed. S.Ct. [51 Hague CIO, 736, 1093]; 84 L.Ed. 88, S.Ct. U.S. [60 954, 1423].) 83 L.Ed. 496, 307 U.S. S.Ct. [59 building using public a privilege of a as forum The lightly lightly given away. or taken one valuable to be too lightly be received. It can be lost It is also too valuable groups community persons if some abuse to the whole dangerously. maliciously, The state must frivolously, danger present to the com- any for clear and on the alert warning signals, the ambiance munity, sensitive to envelops that it. atmosphere planned, a forum is It look equanimity upon cannot with those whose words or actions have already left in their wake a trail violence.
Always
distinguish, however,
it must
no
speech,
between
unorthodox,
matter how
that remains on a
plane,
theoretical
and speech,
skillfully intoned,
no matter how
a
creates
present
clear
danger
community.
and
to the
a
“There is
material
agitation
difference between
and exhortation call
ing
present
for
violent action which
a clear and pres
creates
danger
public
ent
evil,
disorder or
and
other substantive
justification
mere doctrinal
prediction
use
force
hypothetical
under
time—
conditions at some indefinite future
prediction that
not
presently
calculated or intended to be
upon,
acted
leaving opportunity
general
thus
discussion
and the calm processes
thought
Bridges
and reason.
Cf.
California, 314
190,
(1941),
U.S. 252
S.Ct.
192],
concurring
Justice Brandeis’
opinion, Whitney v. Cali
fornia,
372-380
S.Ct.
71 L.Ed.
see, also, Taylor Mississippi,
There is no pro- would arise from the posed meetings in present Rights case. The “Bill only legitimate Postwar subject America” is of dis- great public cussion but one of The proposed speak- interest. ers men qualified subject include well to discuss the and there no likelihood that substantive evil would arise out proponents discussion. The meetings, officers Diego the San Civil Liberties Committee affiliated Union, American they Civil Liberties have made it clear that comply requirement respondent refuse with the board file affidavits as to their convictions and affiliations requirement because that rights violates their constitutional assembly. speech They free take their stand principle approval constitutional not commit them that does government by of those who believe in the overthrow vio- may lence. seem ironic that who hold such beliefs others privilege of a seek the state the forum. But principles peaceable assembly of free when the stake, gain gen- are at state has more to than to lose many erous of the convictions and affiliations of its tolerance long danger they present citizens so no clear community. in- 19432 does not unconstitutionality of section
555 sec Act, in contained the rest the Civic Center validate “It Code. 19433-19439 of Education 19431 and tions decisions by line of general supported an unbroken is a rule may be unconstitutional part or a an act provision that a still enact, legislature beyond of the power accepted in such doctrine may not void. the whole act be may portions the statute constitutional case is they separated in force if can stand alone and remain portions which The unconstitutional are void. entirely act, enter so not vitiate the whole unless will impossi design law, it scope that would be into the (Peo provisions.” maintain without such obnoxious ble it 388]; 5 Lewis, 280, 13 284 Cal.Jur. ple v. Cal.2d P.2d see [89 644.) and en 643, upheld Act can be The Civic Center Cen provision. The Civic forced without the unconstitutional 1913, p. 853); in (Stats. Act in 1913 ter was first enacted (Sch. Code, incorporated it into the Code was School 6.750-6.772). original form nor as enacted Neither in its §§ any provision it into the School Code did contain similar meetings in public section 19432. not until when was buildings school had become institution time-honored making adding a the use by provision the act was amended meetings buildings dependent the users in the sense determination that are not subversive (Stats. 1935, specified 1460.) When p. section 19432. years is an act that has stood valid over the amended ordinarily alone provision, unconstitutional the amendment (Miller Co., invalid. Bank & Trust v. Union Cal.2d Commission, 278 1024]; Corporation P.2d Frost v. Any 515, 525, validity doubt as to the Center Act the rest of Civic dispelled part the fact that as of the Education Code governed by general construction contained rules of (Govt. 9603.) preliminary provisions Code, thereof. § any 26 of provides: provi Section the Education “If Code code, application sion of this person thereof invalid, circumstances is held remainder of the code application persons or provision of such to other circum Although thereby.” stances shall not be affected language read it is such cannot be as an inexorable command rightly language well settled that “The use considered as of intention on the court declaration legislature lay part power within its so far a separable portion invalid of the act not destroy should ’’ (Bacon whole. Corp. Huss, Service 21, 32, 33, Cal. P. Portnoy, re Cal.2d *17 1]; People Perry, P.2d 212 186, 19, Cal. P. [298 1331]; A.L.R. v. Benson, Crowell U.S. S.Ct. 285, 76 846.) see 11 Am.Jur. Let peremptory the writ forthwith. issue Gibson, J., Edmonds, J., J., C. Schauer, and concurred. CARTER, J., Concurring. In myopinion the writ should issue, agree I and expressed with the views in opinion the prepared by Traynor Mr. Justice in excep- this case with the tion of what said holding therein relative to in the the majority opinion Payroll Guaranty in Assn. v. Board of Education, 27 Cal.2d 197 P.2d 161 A.L.R. 1300]. I adhere to expressed my dissenting the in opinion views in the case, reason, last mentioned and cannot concur unqualifiedly in opinion prepared by the Mr. Traynor Justice in case the at bar. I question
As see presented here, it is whether or not Legislature may property authorize the use of school a civic center and at place power the same time it within the governing of deny permission school board for the may use of said property persons who be affiliated with organizations Legislature which the has declared to consti tute a legislation subversive element. The effect of such permit right a prior censorship assembly and ex pression. my opinion In this cannot be done without vio lating provisions and Amend the First Fourteenth ments to the the United States. The First Constitution of unqualifiedly guarantees speech Amendment freedom of and assembly. freedom of No restriction on the exercise of these rights is amendments mentioned in the Constitution upon placed thereto. The been these restrictions which have rights judicial interpreting pro in found decisions States, visions above mentioned. v. United Schenck page 470], Mr. U.S. at 63 L.Ed. Justice stringent speech protection Holmes said: “The most falsely shouting fire in a protect would not man in theatre a and man from causing protect It even a panic. a does not injunction against uttering have all the words that Range Co., Gompers Buck’s Stove & effect force. 418, 439 question The 797]. every ease is whether the words used are used in such cir cumstances are of such nature as to a a create clear and present danger bring will about the substantive evils Congress prevent. question prox has is a imity degree.” present danger clear rule has been applied by followed and Court United interpretation numerous decisions designed proscribe rights statutes speech freedom of and of assembly varying under circumstances and conditions. The trend of these decisions as disclosed the citations thereof in opinion prepared Traynor Mr. Justice this case application is toward a more liberal of the First and Fourteenth Amendments of the Constitution of the United States to the end that freedom assembly may not be persons denied to because of affili organizations ation declared state to constitute subversive thought element. This clearly expressed by was Hughes Chief Justice Jonge Oregon, in De *18 278], where he said: “We are not called upon to findings review the of the state to court as objectives the Party. the Notwithstanding Communist those objectives, enjoyed right the defendant personal still his speech part and to take in peaceable assembly having a lawful purpose, although called party.” that
I can no escape see from proposition the that if member- ship in or organization affiliation with an declared to consti- tute a subversive deprive element does not one of his to freedom speech assembly, beyond or it is power then Legislature against authorize to restrictions the use of school property prevent which persons using will such property such in the manner same as other members of the public may permitted be to use the same the exercise of rights assembly.
SPENCE, J. I dissent. respondent granted The board has petitioners to permission auditorium, subject to use a school only to they the condition that subscribe to and file with the board following affidavits containing “I declaration: do not I advocate and not any organization am affiliated with which object advocates or objects has as its or of its one overthrow of the Government the United States or of any State force violence, or other unlawful means.”
Petitioners file a writ refuse to such affidavits seek grant compel respondent of mandate board to unconditionally, im- permission claiming that the condition rights. posed is violative their constitutional Code, 19432 of Education in 1945 Section amended (Stats. 1945, 1213), opin- chap. majority set forth repeated ion and need not be here.
It is but of the which was Act, one section Civic Center 690-692, (Stats. 1943, reframed in 1943 pp. and reenacted 19431-19439), grant of Code, Ed. which act constituted a §§ governing permit power to the boards of school districts to buildings, subject the use of to the limitation or ex- in the ception in section 19432. is conceded contained valid, majority opinion “If the that that section is it is clear reasonably provided for affidavits board acted when conformity legislative rules in amendment.” its with the majority opinion conclusion is that reached void, provisions are unconstitutional and section affidavits, and petitioners may required file the not be petitioners entitled the issuance the writ. are therefore agree. I With these conclusions cannot jealously has While the United States Court of the guarded liberties, decision of that court there is no civil pro- compels other the conclusion that the court which Education are unconsti- visions of section of the Code question presented Here the whether tutional void. crimi- may punished under a particular or utterances acts infringing upon nal statute without First or Amendment of Constitution Fourteenth granted public official States; or whether United persons who arbitrary grant deny permit power to place open speak public in a desire to assemble all have here times. We generally to members of at Legislature may provide simple question of whether the meeting places our use as permission who those seek gov- by our *19 erected and maintained public schools, which are open purposes and are not primarily ernment for educational may all purposes, all for generally at times or public enjoyment oath, condition required as a be to take an not affiliated not use, do advocate of such of that the overthrow organization which advocates any means. or other unlawful force violence government by require such board respondent Section authorizes nothing is unrea- my opinion which oath and in it authorizes rights of any of the constitutional or which violates sonable worthy of note for such use. permission those seek who the constitu- only ago this court assumed a few months Edu- tionality section 19432 of the the same Pay- in challenged, it said cation are now when Code which Education, 27 Guaranty Assn. v. Board Cal.2d roll “The respon- at 200: 1300], page 161 A.L.R P.2d regulations with may only dent make reasonable board not for authorized regard auditorium to the use school (1) may deny if such purposes application its use but directly indirectly, further, the overthrow of use would any State, present government of States or the United thereof, by or other Territory Possession force or violence means, . . . .” unlawful majority and in the in the briefs
Reference has been made danger” present rule. opinion the so-called “clear majority opinions expression in certain While that rule finds Court, Supreme as well in the decisions of the United States yet concurring dissenting opinions, it has as in certain permit any degree of cer defined in manner as to concurring opinion Mr. tainty in In application. its California, 357, 374 Whitney in Justice Brandeis 1095], “This court has he said: danger yet determine when a fixed the standard which to danger be and clear; shall deemed how remote the majority very yet present.” opinion In be deemed Supreme Court, handed decision recent of the United - (Pennekamp Florida, 3, 1946, down June - Term, 1945), -], October 1029, 90 L.Ed. give an answer” and frankly “No definition could it is said: uncertainty.” has the “vice the rule still has United States Court event, no decision of the the “clear called to our attention been similar to that danger” applied to situation rule has been application. has my opinion no presented here, and required goverment is not to main- It seems clear that our meeting places buildings for the use as tain its I force and violence. overthrow those who advocate its found the statute exception limitation or that the believe Legislature had seen broader, if the might been made have power might have withheld Legislature fit, and that the permit the use of governing districts boards *20 buildings by the school those other who advocate serious crimes. objection There could be constitutional no valid denying exception limitation or use of our school build- ings lynching to those who advocate or who advocate the assassination of President of the United or who States against persons; advocate other crimes of and for violence reasons, similar objection denying there can be valid no buildings the use of such to those who advocate the overthrow government by of the impossible force and violence. It is though may divorce crime from criminal aspects its even having tinge; purpose political committed for a and the advocacy merely of crime does not become sacrosanct because purposes nature of the motives or of its advocates. advocating government When those the overthrow of our buildings force and violence seek the use of our school as meeting places, safety consideration of our educational appear justify facilities would to be alone sufficient to use; question denial of such and the whether there danger” said to be a “clear and the overthrow of government by our appear force and violence would to be immaterial. But if such considerations be deemed insufficient to render " ’’
immaterial question present danger, of clear and there no nevertheless definite indications the decisions of the Supreme United Court .the States of section 19432 of the Education Code should be declared unconstitu contrary, wording tional. On the section of that bears similarity Syndicalism wording of the Criminal Act (Stats. 1919, p. 281), and that act has been held to be consti tutional in Supreme unanimous decisions the United States (Whitney California, v. Court and this court. 274 U.S. 1095]; People Steelik, 187 Cal. [47 act, us, P. That unlike the act before was a penal present danger” statute. The “clear rule was dis opinion concurring Whitney cussed in the in the but the case unanimously conviction under the act was sustained. De Jonge Oregon, 278] Chambers, People adequately Cal.App.2d discussed Jonge p. P.2d The De case likewise 687 at 746]. penal while the reversed the involved statute and court ground “Oregon ap upon conviction that the statute charge by plied particular as defined state court repugnant process the due clause Fourteenth Whitney v. Amendment,” approval it cited both Cali- York, 268 fornia, supra, and Gitlow v. New 1138], 625, 69 L.Ed. S. Ct. the last mentioned ease the United Court inciting 669 : to the overthrow page
said at “That utterances present a organized government by means, suffi- unlawful danger bring punishment cient of substantive evil to *21 discretion, range legislative the is clear. Such ut- within of very danger terances, by nature, public involve They peace security the the State. threaten breaches and to and And the immediate peace the ultimate revolution. danger substantial, the effect is none real and because the less given accurately of a utterance foreseen. The State cannot be danger reasonably required to the cannot be measure jeweler’s every a scale. such utterance the nice balance of single revolutionary may that, A spark kindle a fire smoulder- ing may sweeping for a and time, a burst into destructive conflagration. acting It cannot be that the State is arbi- said trarily judgment of its unreasonably or when the exercise necessary public peace as to and protect the measures to the safety, waiting extinguish spark without until seeks to conflagration. it has enkindled the flame or blazed into the reasonably required adoption cannot defer of meas- to revolutionary peace safety ures for until utter- its own public peace im- ances lead actual to disturbances destruction; danger minent own but it and immediate of its may, judgment, suppress exercise of its threatened danger incipiency.” in its right speech of free does not
This court has said: “The right or overthrow of include the to advocate the destruction (People government property” criminal destruction of or the Steelik, 78]); P. and the United 187 Cal. 375 [203 “The has said: Constitution was States Court Government, pro- not to serve as adopted preserve to our claiming privileges its seek tecting screen for those who while Social (United ex rel. Milwaukee destroy to it.” 407, 414 Burleson, 255 U.S. Pub. Democratic Co. L.Ed. 641, Whitney California, 274 U.S. at Supreme Court stated 1095], the United States in this applied Syndicalism Act as
page 371: “Nor restraint process the due clause as repugnant case rights assembly, and association. speech, of free
‘‘ which is secured That the freedom of Con- speak, an does not confer absolute without stitution choose, one or an unrestricted responsibility, whatever immunity every giving possible use unbridled license language punishment of those who abuse preventing police in the exercise its freedom; and that state this this freedom utterances power may punish those who abuse tending crime, incite to welfare, dis- inimical to the endanger organ- public peace, or the foundations turb the its overthrow unlawful government and threaten ized York, question. v. New open Gitlow means, is not 1138, 1145, 45 S.Ct. 666-668, 69 L.Ed. and cases cited. Syndicalism Act the enacting
“By through legislative body, that to know declared, its State has organizing member of assist ingly be or become a advocate, teach or aid and abet the commission association to force, violence terrorism or unlawful acts crimes changes, in political industrial or accomplishing a means security danger public peace volves such penalized in the exercise state, that these acts should be given great That determination must police power. of its indulged in to be favor weight. Every presumption is *22 Kansas, 623, 661, (Mugler v. 123 U.S. validity of the statute may it declared 273), and not be 205, 210, 31 L.Ed. 8 S.Ct. arbitrary or unreasonable it is an unless unconstitutional authority in in the vested the state attempt to exercise City, v. (Great Northern R. Co. Clara public interest 346). 817, 819, 38 S.Ct. 62 L.Ed. 434, 439, that, applied, the act is an as here hold “. .-. We cannot power of the police of the arbitrary exercise unreasonable or any right speech, of free as- infringing unwarrantably state, association, ...” sembly or statute, validity our this considering election
And in
Peek,
536,
20 Cal.2d
v.
Party
in
said
Communist
court
re
however, that
doubt,
is no
: “There
P.2d 889]
[127
Legislature’s power
2540.4 comeswithin
mainder
section
primary
in
participation
for
and conditions
prescribe tests
to
right
adopt
to
certainly includes
power
This
elections.
advocating the
parties
political
designed
exclude those
to
tests
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those
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government
overthrow
violence,
sabotage, force and
carrying
program
on a
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groups constitute
treason. Such
sedition
institutions,
including
functioning
our
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suffrage.
Since it within
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continued
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Whit
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641,
;
ney
California,
In the of the definition rule, danger” suggested been present it has “clear Supreme as to whether the Court may there be some doubt expressed still adhere to United would the views supra, case, in the consideration of the Gitlow a similar I am of the penal opinion conviction under statute. is no that it but I believe there doubt would would still upholding views in adhere to those state adopt provisions, such as those reasonable embodied in Code, seeking prevent 19432 of the Education section meeting buildings places use those of its whose government by our purpose the overthrow of force avowed unwilling those who disclaim such violence United States have purpose. Until Court views, I believe this court definitely repudiated those should salutary provisions of reasonable and that section. uphold the " might application of the that some clear and stated case, supra, danger” Gitlow test since the has been proceedings arising corpus after com habeas cases such as legislative there has contempt, in which been no mitments for type of utterance or its particular conse evaluation Bridges California, quences. Thus, it said was judg : page at “The 192] *23 therefore, not to us encased in below, do come ments It wrought by legislative deliberation.” has prior armor recognized Legislature ap has always that where the been specific and found a praised particular a kind of situation 564
danger sufficiently justify imminent restriction particular utterance, kind such determination should be given great weight challenged when the law on constitu- grounds. (See Lowry, Herndon v. tional 242, U.S. 732, 1066]; 81 L.Ed. Connecticut, S.Ct. Cantwell v. 900, 1213, S.Ct. 84 L.Ed. A.L.R. Minnesota, Graves v. 272 U.S.
331]; Bridges California, Legislature appraised Here the has the sit- determination, uation and has made its which determination great weight should be accorded and should be not set aside clearly appears this court unless it that it was without any foundation.
While I sustaining do believe that further reasons constitutionality of section 19432 of the Education Code are necessary, one further consideration should be mentioned. The reenactment of the Act in 1943 and the Civic Center 1945, together amendment 19432 in to section with the facts giving application here, during rise to its all occurred a time emergency war, by Congress, when a state of as declared government foreign existed our powers. between certain During periods emergency imperative such of national' government need for effort to sustain our all united and for prevent attempts overthrow, reasonable measures to at its within, Regardless seems obvious. without divergent concerning danger” present views the “clear and rule, courts, it should be clear that it is not for the emergency, times of to declare that no “clear and danger” Congress, by when its exists declaration of state of war, otherwise, Legislature en- has declared has legislation danger. acted tends to minimize question concerning be passing, it should stated no validity respondent of other board is involved. rules of petitioners— further that the claims should be stated law-abiding known to citizens and that their organization organization important as an civic known entirely point. ques- purposes—are useful beside the sole seeking permission persons tion to use the is whether all buildings may to file affidavits the form required above set forth. assumed, however, majority opinion that the
If it should be concluding of section that the correct void, are neverthe- petitioners are unconstitutional
565 less not entitled to the o£ The issuance the writ. Civic Center Act, (Ed. Code, as enacted in 1943 19431 19439), was §§ upon based Code, including former sections of the School section 6.750 code, of the latter which last mentioned section long had exception embraced the limitation or now contained paragraph the first of 19432 section of the Education Code. That limitation governing denies to the boards of school dis- the power grant tricts buildings the use of school to those who advocate government by the overthrow of our force and violence. The 1945 amendment made in to section 19432 (Stats. 1945, chap. 1213, p. 2301) specifically authorized the governing boards of require school districts to men- the above tioned affidavits as determining an aid in the facts.
According to the majority opinion, the limitation and 1945 amendment are void but the remainder of act stands. This can only be so clearly if it appears Legislature that the part intended remaining though to be enforceable even the other part (Bacon Corp. Huss, should fail Service 199 Cal. 32 P. 235]; In Portnoy, re 242 [248 Cal.2d 1]; P.2d Payne, Robison v. Cal.App.2d 103, [131 107 [66 P.2d 710]; 5 73, p. 648). Cal.Jur. The § so-called severabil ity (Ed. clause 26) Code, majority opin referred to in the § ion not determinative possible contingencies as to all aris ing out of invalidation provisions of (see of the code Bacon Corp. Service Huss, 21, 34 235]; Cal. P. In re White, 195 Cal. P. Portnoy, re 21 Cal. r 2d 1]), P.2d placed among gen as it is eral prefixing Code, the entire Education can be of little aid when we come to problem discerning the real of precise intent Legislature with reference to the Civic Center Act. It is to be remembered that this act was last enacted in a time of during war and emergency yet has not been declared safety over. Factors and do security mestic already to, have been alluded and whatever may have been the legislators any prior attitude of the at time ' to such enactment, question there is no but that such factors paramount were in their minds at that time. There is not ing in the Civic support Center Act to the conclusion that the h Legislature would have enacted the act limita without the
tion which it includes. It follows that if the limitation is invalid, grant the entire power to the governing boards school is invalid, districts duty which event there is neither nor upon part respondent board grant building use the school to petitioners. City High Dist. support in Pasadena School
This view finds 408], P. A.L.R. Upjohn, Cal. the Political Code court there considered section high high “The school school provided: board best, may provide, in manner as deem such district high transportation pupils of such to and school any city, except living within the limits thereof, pupils transportation; and the to be need such board find cost transportation part deemed cost shall be maintaining high accordingly.” (Em- paid *25 added.) phasis constitutionality emphasized exception, of the amendment, challenged. there This
had been added
was
“Assuming
page
at
779:
for the moment that the
court said
invalidity
destroy
exception
void,
the whole
entire
its
would
legislature
that the
grant
power,
for there is no indication
including
have enacted the amended section without
would
Corp. Huss,
(See Bacon Service