Printing Industries of Gulf Coast v. Hill

year, past indeed events a Regulation de- confers 1601.14 taught month, past us the have procedural benefit an fendant gov- meaning phrase is a of that “ours gives defendant a to 1601.23. similar allegations men.” The Gov- any ernment of laws not of answer opportunity to an prior expects obey the ernment its citizens to determination the Commission’s not, law, asks for when do (For reason- once cause. of reasonable strange accounting. it is that found, How a deter- such has been able cause government agency par- when a official or irreversible). This mination regulation, breaches statute or important, here, inter- where ticularly casually a mere technicali- primary dismissed as con- rogatories constituted ty. government re- not which does parties. A While tact between spect certainly expect cannot its correctly law defend- states Commission citizens to so. No one do is above de novo a trial entitled to ant is including law 1601.14, EEOC. Regulation as the as well issues, VII, statutory of Title scheme above, entire it is this For the stated reasons expen- designed timely and to avoid that August, day 15th ordered: consequence. sive Motion for That the defendant’s 1. Judgment Summary be, the same adopt position To the Commission’s is, granted hereby III as to put claims proverbial would be to cart be- IV; allegations fore the horse. of sex discrimination arose the defendant 2. That defendant’s Motion after provided requested. the information Summary Judgment is, in other re- all Obviously, then, it did not have chance denied; spects, present evidence to refute the claim That defendant’s Motion for 3. of sex discrimination. The Commission Summary Judgment be, and the Partial guess would force a defendant to or an- granted hereby is, as to V same claims ticipate charges bring. what it will except therein stated. VI repetitious, repeat- It is but it bears ing again, that the tenor of the Act is

voluntary compliance. By denying the respond,

defendant the chance to

Commission closes the door on communi- parties cation and locks the irrecon- into positions. Only through

ciliable interac- tion all can the facts and be issues aired possible PRINTING INDUSTRIES OF the GULF and a settlement reached. al. COAST et comment, Court is dis- As a final attitude the Commission’s turbed Attorney HILL, Honorable John General herein are raised that most the issues Texas, of the State of et al. objections. It holds purely technical A. No. Civ. 73-H-1261. eliminating well-meaning goal of that its justifies the (cid:127)employment discrimination Court, States District United regu- procedural Texas, rules or D. breach S. agree. Houston Division. This Court cannot lations. also a desirable Aug. 20, of crime is elimination considering goal waste it vis- the human Stay Granted Oct. 1974. Yet, could dismiss its. a court 19. See 95 S.Ct. his con- an accused of failure advise Probable Jurisdiction Noted Dec. technicality. rights as mere stitutional See 95 S.Ct. 677. So, too, serious where this case charges been discrimination stripped made, the defendant cannot be

of all

Bue, J., specially concurred opinion.

filed an Bellaire, Tex., Birnberg, for

Gerald M. plaintiffs. Atty. Gen., Brown,

Penny Asst. J. Aus- Tex., Levatino, Houston, Elizabeth tin, Tex., defendants. Judge, GEE, and SIN- Circuit Before Judges. BUE, District

GLETON SINGLETON, Judge. rights guaranteed by the first amend- District argument ment. The is that because Legislature of the the 63rd standing there is no assert 14.10(b) of Texas amended Article State parties except very of third narrow V.A.T.S., Election Texas Code circumstances, have no provide “Any printed or follows: standing because the seek to published advertising shall also parties, pol- assert are those third printed on it the name and address printers, iticians voters. The it is publisher per- and the said, are “commercial conduits” advertising.” paying son for the Sanc- all, pocket injured, who are if at in the tions the violation of the law personal political speech book—their fine of not than nor more than less $100 association remain untouched $5,000 imprisonment than less the law. court This believes that year years one nor more than five personally injured by are the imprisonment. both and fine law. Plaintiffs are a trade association con- sisting persons exclusively engaged rights The first amendment to printing industry the and three named speech press freedom of and not exist printers. brought individual They have only because the authors of the Bill of pursuant this suit to 42 U.S.C.A. Rights § to wished humor the eccentrici alleging quoted language is un- soap on ties the man the box but be constitutional because it with interferes they cause wished to secure forever the right political their and associational making means of the United a States privacy anonymity and and because it place free market The human ideas. abridges press. the freedom of the Fur- pen voice and human the are vital they allege ther, that the statute is un- goal this but no more vital than the constitutionally vague imprecise. and physical printing press itself and the plaintiffs alleged The they have that persons operate it. All of these fear and have reason to fear intimida- rights goal. exist because the same tion, harassment, reprisals they and if say achieving goal Who can the required openly are to associate and any one element is more or publicly political with certain candidates that because one element has commerical positions or required by statute; as aspects standing protect it lacks it they persons seeing plaintiffs’ fear that rights closely self. All of these are so names on advertising will mis- together goal they bound were takenly plaintiffs believe that en- created to achieve will fail should positions dorse those candidates or say right one be curtailed. To printing they undertake, whose and in printer physically print of the way chilling this the statute has a effect distinguished written word can be from on the exercise of first amendment of the author his have rights. Further, allege they they printed printer because words were require- unable to determine the (his prints in interest the ideas he ments the statute in that the terms being receiving terest a fee for his “person paying advertising” for the and printing) ignore is to clear not “publisher” are not defined. language of the first amendment but Jurisdiction is Re founded on 28 scheme behind that amendment. U.S.C.A. impede 1331 and 2201 and strictions on do §§ The three-judge author, printer’s rights case before are not district court derived from virtue of 28 the author’s U.S.C.A. §§ rights printer’s and 2284. are related to those rights are derived from the same —both STANDING idea behind the amendment. The first questioned defendants idea behind the first amendment would standing rely of the severely threatened were we to limit argument. the assertion of mercial conduit” first In Near v. author-printer Minnesota, who both writes prints (1930), and Protection L.Ed. 1357 the Court cut down a ideas. ground- authorship speech firmly provided and Minnesota state statute which protecting policy corporation “reg- a ed on a national rights ularly customarily” publish- produced, of both individual and Printing people. ed, circulated, publication sold, and possession, whole had in strong gave away “malicious, individual not rest as and on scandalous defamatory magazine support speech authorship, but and newspaper, or oth- printing periodical,” guilty and without er be found because publication could publishing, etc., advance the a nuisance and have the enjoined. people understand are to know and nuisance court said: deserving protection than no less attempted justification In of the stat- authorship. speech In this sense ute, said that deals not with publisher rights of publication per se, but with the than no more derivative publishing “business” of defamation speaker author.1 Characterizing pub- business, lication as a and the busi- Supreme During the Court 1930’s nuisance, per- ness as does course which defined embarked im- mit invasion munity constitutional guarantees em- first amendment against restraint. importance. phasized their all long 720, was theme: of there one at It is line cases 51 S.Ct. 632. at publication of framers of the consti- in existed “the belief the true that Near the rights only group at put the lies that exercise of forth so tution ideas of one government by publisher’s foundation of free the case can distin- the that be Irvington, guished indepen- from free men.” Schneider the case of the 146, yet here, 84 L.Ed. we S.Ct. dent contractor which have Never, recognized eases, Supreme in these the Court that the rights personal gives press in of terms amendment first something free- purely of individual than a for the sake which makes it more dom, are defined rather mere business. personal for of the sake of terms Grosjean v. American Com- Press government by This free men.” “free pany, L. 56 S.Ct. diminish the ob- was not meant to theme viously strong (1935) attempt to there an was Ed. free- in individual belief gross impose a of license tax of 2% emphasize individual dom but advertising newspapers receipts of of free- first amendment freedom speeeh 20,000 having of or more a circulation purely for area not cherished regu- attempt per at This was week. cherished for the sake but is its own lating aspects of a the eommerical people. It seen as of all was sake absolutely yet newspaper’s operations, the Court democracy essential it His- down. did not hesitate to strike founding fathers which the established. of torically, of the circulation taxation language these earlier cases repression, not newspapers a tool was Supreme quite makes clear pockets money took from the it because first which first articulated the Court was a publishers but because protections for limiting amendment we take circulation “the method public granted today is enti- considered a “com- never information to per- person, protection any natural as other 1. To this court first amendment places effectively corporate, constitu- a fee could raise the who for free or for son wood, question paper, stone be afforded dissemination on should for tional great protection constitutional his ideas or of others. full ideas those printer, proper If is a definition of a cer commandment. tainly person as would be entitled to guar- violating tied in virtue of the constitutional a bookseller convicted a Los Angeles city 297 U.S. at antees.” ordinance which made it il- any legal never There was pos- standing Gros- session an obscene or indecent book in jean bring directly any place suit kept which so where sold or books were the first involved them and to assert sale. The Court said: protection. as their requires It also no elaboration that important, publication What more Court the free and dissemination purpose print- stated the first amend- of books and other forms of the ed word furnish very applica- ment: familiar protect- grant immunity constitutionally tions of these here invoked speech press]. ed preserve press freedoms [of was to an untrammeled public is of course no matter that as a vital source of information dis- place abridg- suppression semination takes under commer- auspices publicity cial ment afforded Cer- [cites omitted]. tainly regarded plays press a retail bookseller a most free cannot be other- significant process grave role wise than with concern. distribution of books. at 449. It is 297 U.S important treating this when 80 S.Ct. at 217. realize the instant case because our zeal to Sullivan, In Bantam Books v. secure individual first amendment (1962), 9 L.Ed.2d it often see becomes hard to standing question with in was dealt governed by men men ideal free free a footnote: just dependent upon the vehicle of Appellants’ standing been, has not nor speech press. just free free Not —a be, successfully questioned. could it tract, print freedom to write one’s own appellants have in fact suffered a it in basement, one’s and distribute on palpable injury as a result of the acts street corner is at stake alleged law, to violate federal and at go freedom to to a in the busi- injury the same time their been a has printing over the ness of what comes legal injury finding The [cites]. pay printed counter, him, and have one’s impaired the Commission’s notices purpose tract is stake. The of the publications, sales the listed which protect per- first amendment was to by appel- published two books include only operates press as son much appellants lants, establishes that suf- author-printer, as the not so much be- * * * injury. [A]ppellants fered printer cause otherwise might commerical position proxies in are not of mere money lose without but because arguing another’s constitutional printer many author could not an guarantee constitutional The the mere disseminate his ideas. Unless press of the embraces the of freedom greater has a as their circulation of books as well businessman, ordinary than publication Lovell] to [cite be harmed not his self-interest will publisher has The purpose first amendment but the of the sup- greater stake, because economic public in- in will be defeated. It prevents particular pression of a book keep and in business terest to recouping in investment him from speaking speakers keep and writers to permitted publishing he is it. Unless writing. public interest and historically sue, infringements freedom of to only by not been assertable go press may unreme- too often speaker but the individual author and died. publisher well. 6, S.Ct. at 636. n. 83 analysis. bear out this Later cases standing Bantam California, Plaintiff’s 80 S. Smith v. in the tenuous than (1959), Book case was more concerned 4 L.Ed.2d 205 Ct. books, magazines, publisher newspapers, chal- present There the case. up by humble leaflets circulars the state but also lenged set a Commission play to to book dis- [cite Lovell] advise state Island to of Rhode public never was role in the discussion of affairs. There and sellers. tributors standing question of the dis- challenge no- the Commission to tributor TEST standing publisher’s eas- was tices. questioned Amicus Common Cause has permit- ily because “unless he found measuring test be wheth- used infringements freedom sue, of the ted er or a state election is offen- not law go press unreme- too often first amendment. Common sive died.” Branzburg suggests Cause that since v. significant that nei this court Hayes, Pittsburgh Pittsburgh Press v. ther (1973), compelling L.Ed.2d 626 state Relations, 413 Human on Commission longer test is no This is interest probably viable. 37 L.Ed.2d 93 S.Ct. reading an incorrect (1973), Sulli York Times nor New Branzburg case. As Gerald Gunther van, L. pointed Supreme Court, out his “The (1964), parties as were the Ed.2d 686 Term,” 1, 141 86 Harv.L.Rev. serting chal the first (1972): Yet, standing. lenged the basis on “investi stressed that the The Court policy not editorial both cases it was grand jury im gation of crime subject but the suit which was the governmental plements a fundamental True, question in advertisements. securing per safety of the role of or not the of whether both became one property citizen.” son and might unpro constitute advertisements “compel found to be This Court speech,” this tected “commercial ling” governmental interest to which merits, not one was one reporters practice calling tes justiciability. tify a “substantial” relation.25 bore printers in To hold Professor in footnote And then standing, would be neces suit have on: Gunther went newspa distinguish sary to between the to indicate whether refused The Court per political pamphlet. or book and the proper test it considered ques Yet, in Court 1937 the settled that sought bore information whether tion: or a “substan- relation “reasonable” liberty press is con- government pur- relation tial” * * * newspapers periodicals. pro- fined to the Court pose. But necessarily pamphlets and It embraces apply the latter test ceeded indeed his- leaflets. These have been government had succeed- held that the weapons toric ty, in defense of liber- satisfying in it ... ed pamphlets of Paine as the Thomas Certainly, area of control in the state history abun- and others in our own process, Court has election dantly press in histor- attest. The its unwilling us- point out it is that been comprehends every sort ic connotation test, compelling interest ing state publication a vehicle which affords “administration probably because opinion. of information and process that a matter the electoral Griffin, 444, 452, 58 Lovell v. 303 largely entrusts Constitution 669, (1937). 666, 949 S.Ct. Pontikes, L.Ed. Kusper v. states.” 303, 307, L.Ed.2d 51, 57, 94 S.Ct. in Court reiterated this sentiment Alabama, Mills v. 1434, 1437, (1966) 16 L.Ed.2d : Rockefeller, v. Rosario In (1972), specifically selected The Constitution challenge to a rejected Court press, includes not required state’s law which a voter to en- proce The Court followed a similar party Kusper Pontikes, roll in choice least in dure v. supra, an days general thirty challenge before the election other ato state’s election laws. examining in in order in November to vote the next In Kusper, in restrictions primary. subsequent party One the Court found that it did have a sub on which bases lenged the statute was chal- stantial effect on associational freedoms. finding change

was the assertion that violated it This sequent analysis seemed to the sub the voter’s freedom to associate with the from the in one Rosa political party past of his choice. The Court rio: “As our clear, decisions have made significant felt upon that the statute did not in do this encroachment significant way. not, justified The law did associational freedom cannot be example, showing legitimate “lock” into an the voters a mere state preexisting party unwanted affiliation interest.” 414 U.S. at 94 S.Ct. at year Rather, goes from one to the next. 38 L.Ed.2d at 267. The Court merely imposed distinguish Kusper “a time limitation on on to case from when the in voters had to act order to and to hold Rosario Rosario itself participate party’s goals sought by in their chosen next indicates that the Illi primary.” States, conceded, Kusper by have an nois can be obtained less setting Although interest derly time or- limits an drastic means. the Court has process. election not articulated its standard in these cases, “past election its reference to Having rejected argument Kusper decisions,” in it can be assumed requirement the limitation, was more than a time compelling state interest test is concluded Court con- slightly well, alive and if in a altered cerning itself whether or with not the emphasized form. must be also time limit in and of itself could be said quite factually these voter cases are dif an onerous burden on freedom of pure free-speech ferent from the case association. Because state had a .2 with which we are faced here justification statute, reasonable for the is, prevent “raiding” during pri- Clearly, if the burden on first mary elections, upheld. was the statute amendment freedoms is more than inci resulting dental, employ “The time limitation in enroll- the Court will not a “ra particularized ment is “particularized thus tied to a le- tional” state interest or legitimate purpose gitimate purpose, standard,” in- sense it did arbitrary.” Rosario, vidious 410 U.S. at but will return to a standard similar, identical, 36 L.Ed.2d at 10. which is if to the compelling state-interest test. Rosario, In the Court examined the compelling What is known as the quantum of restriction on associational state-interest is set forth in this test rights, insignifi- determined it was language Irvington, su Schneider complained-of cant, characterized the re- pra, 60 S.Ct. at 151: striction, and then reexamined it case, legisla- light goal therefore, relationship every In where its abridgement seeking accomplish. tive is as- state was Martinez, governmental in- or substantial case Procunier v. tlie recent suppression of ex- to the 224 terest unrelated U.S. S.Ct. pression Second, Supreme (1974), limitation the .... the addressed the Court problem censorship freedoms must be no from First Amendment of the mail to and of greater of necessary prisoners the or essential to on first than is and the incidental burden governmental particular thereby. protection the The of caused Court at interest involved. 416 U.S. said: prior Applying teachings at 40 L.Ed.2d 240. the of our decisions at court, context, Procunier demon- this the case hold that censor- To to the instant we compelling justified ship prisoner test fol- strates the state-interest mail if the of operative. First, regu- lowing is still are met. criteria practice further or in must lation England lengths to in serted, the should be astute show the courts to which government challenged go of had to to find out examine legislation. effect who legislative prefer- responsible Mere was that were books respecting of to or beliefs matters obnoxious the rulers. ences public support may well convenience 64-65, at S.Ct. at 538. personal regulation directed at other justi- pass expressly but to activities, be insufficient The Court declined to fy of validity as diminishes the exercise or such on of an ordinance law purpose so vital to the maintenance of to in its the identifica- limited responsible fraud, And so as democratic institutions. tion of those false arise, advertising libel, delicate and difficult the case cases or and decided weigh upon purpose courts to of the task falls on The overbreadth. appraise purpose and to the sub- circumstances election law is limited Texas stantiality pre- advanced the reasons and to be overbroad cannot said regulation support Talley plac- of the of the free cisely in But sense. enjoyment ing part major of the burden iden- legislature printer, tification mind, of the test in the merits With all has failed rid statute be considered. case will Talley in the the Court found obnoxious ordinance. AMENDMENT MERITS—FIRST QUESTION Talley: The Court said interrelated two assert “There can be no doubt that such an politi- rights: (1) print freedom to requirement identification would tend to anonymously, derived from cal material freedom to restrict distribute informa guarantee of free- amendment’s first thereby expression.” tion freedom (2) printers’ press, and dom the at The in privacy, personal associational print, stant thereby law freedom to restricts amendment’s from the first derived expression. freedom of If he freely right guarantee assem- place name on must the advertise grievances. ble for the redress may print ment, decline anonymous publications Historically, to him matter submitted dissident implements basic considered have been unpopular groups for fear of official expression unpopular ideas reprisals may be which thrust unofficial California, Talley beliefs. in him. substantial This 536, L.Ed.2d 559 60, fringement. judicially Supreme (1960), Court recognized existence being Furthermore, printer, anonymously. Talley teaches: publish middle, hardly the man upon one polic leaflets, place Anonymous bro- pamphlets, the burden of whom played ing and even the Texas Election Code. Precise chures books progress regulation of man- first amendment area role in the Talley groups that, and sects dictate Persecuted would seem to kind. history throughout legislature suggests, the seek di should from time time oppressive punish rectly the cam to criticize to denounce have been able anonymously paign practices utilize the either tacticians laws press purposes. li- printing press all. obnoxious for fraudulent or not censing England, By drawing printers was into the net law of was due make the the Colonies to utilize them to on also enforced state seeks knowledge exposure investigation simpler, job part destroys printers, writers the constitutional names of same time anonymity. guarantee circula- lessen would distributors gov- enjoy anonymity unless literature critical left to tion of must be governmental overriding cases libel The old seditious is some ernment. there investigation seeing printers’ Simplicity political interest. names on overriding mistakenly does not constitute this inter- advertisements will consider est. the name an endorsement of the candi- printer date. Whether the desires Closely printers’ connected with the publicly not, fact requires known or the statute rights print anonymously as printer to reveal he printers’ persons are the to as- has been of some assistance to the candi- privacy. sociational Case law has estab- Indeed, date. one who reads the lished forced disclosure member- publication may unaware of the law ship may particular group in a well vio- requires disclose guarantee late the first amendment’s may identity his voluntarily. he did assume so assembly. the free The Court ex- has pressed way: the idea in this hardly perception It is a novel has countered with State compelled disclosure of affiliation argument that both these burdens engaged groups advocacy may with by printing can be avoided of a dis constitute as effective a restraint on claimer, but disclaimers are not a solu freedom of association as the forms place, tion for two In the first reasons. governmental action in the cases political the statute adver refers to all thought likely produce above were might tisements. room There well be upon particular constitutional for a disclaimer on some advertisements rights there involved on news- [taxes bumper stickers, example, for leave regulations papers; unions; of labor little room for such. Neither does a investigating lobbying]. This Court pamphlet small have much room to con recognized relationship the vital political message, required tain the pri- between freedom to associate and disclosure, accompanying dis vacy in one’s associations .... place, claimer. In the second disclaim Compelled membership disclosure of ers well be ineffective. The fact organization engaged in an in advoca- that one disavowed a disclaimer cy particular beliefs same ideas and ideals of the Par Communist order. ty, example, put would to rest many persons the notion in the minds of Alabama, NAACP v. S. assist had nevertheless (1958). Logi- Ct. 2 L.Ed.2d 1488 making Party ed the Communist its cally, compelled if it one to be burdens presses party. available to the associations, to disclose must also bur- den one to be forced to oneself associate The State concedes that art. 14.- organization with an with which one is 10(b) place does a burden on these first political philosophical not in thy. sympa- amendment but as right “The to associate with the automatically in serts that this does not political party of choice an inte- one’s validate the de to be law. gral part of this basic constitutional juncture cided at this or not is whether freedom associate with [to others placed upon substantial burden is political the common advancement be- plaintiffs. first amendment Kusper Pontikes, liefs and ideas].” they 14.10(b) Article demands supra, atU.S. right anonymous print abandon their ly 266. It could be said that the right priva and their of associational kind of associational contem- disclosure cy they print political if chose to adver plated 14.10(b) amended art. is even prosecution. tising and avoid criminal more of a person’s burden first They demonstrated under oath a le intimidation, gitimate, bona fide fear of harassment, reprisal, both economic 14.10(b) infringes Article physical, required if privacy associational creat ing great persons print probability their all adver- names on derly likely process. Amicus very election Common tising. to be is Their choice alleges Essentially, many privacy Cause more. and ano- one for assoeiational argument by requiring the happens, only the is that nymity. not will If this put political printing politi- to his name they of the lose business requiring keep po- him to advertising unpopular advertisement and those cal of a record of the name and address the their parties wish have who litical paid advertisement, for the printed be left without will materials public easy press. and the have an printing State Most the services way identifying responsible persons underlying policy all, of important of are for advertisements. There basi- is defeated.3 the first behind cally why four the identification reasons to remember that It is also persons responsible for advertise- first amendment will ments is deemed desirable: time when are be curtailed at a Responsibility fraudulent, during campaign. 1. de- election most an vital — ceitful, falsely attributed Surely, libelous, or de- if the first amendment was government political by signed statements advertisements to assure a free men, can be ascertained. free then the discussions year impor- are the most election entitled 2. The informed voter is Yet, would tant all. State curtail particular supporting know who is can- precisely these time. discussions that positions didates or “media and what places That a sub- state affairs image companies” molding the upon burden amend- stantial first the candidate. ment clear to this court and no needs opposing 3. candidates are further elaboration. position reply campaign a better ac- equally as clear cusations. justification advertising expendi- offered the State of 4. The actual substantial, paramount, Texas is not easily are more de- tures candidates compelling enough justify pub- this burden and the termined both the State amendment, light the first lic. possibility distinct State go essence, seeks the State can fashion alternative for dis means through informa- to obtain covering identity of those who abuse illegal questionable activi- tion about process. the election give oppos- public ties, or to ing about candidates information electoral [Administration candidacy responsible process persons is a matter that the Constitu- image any particular largely candidate. tion entrusts the States. exercising powers But in their of su- be, goals may As laudable as these pervision over elections . . . fatal flaws. method is rife with infringe upon may States basic believe that would have this court State protections. constitutional Code con- these few lines of the Election linchpin scheme stitute Kusper Portikes, supra, print- Code; yet, part, the most for the L.Ed.2d at 266. nothing middlemen. ers are than more Alabama, supra. Mills v. The State Cf. alleged Initially, statute remembered that must be it necessary ways penal several or- sanction in there is no affirmative abridgment unlawful, purpose Not direct but indirect to re- have behind it Taxing (Grosjean) publication forbidden. and licens- strict or dissemination ing (Lovell) have been held restraints. So a statute ideas. fact requirement lias salutary purpose bearing to receive a cer- on whether lias request tain form of mail one must de- be held unconstitutional. or not should Cf. General, 214, 219-220, Alabama, livered. Lamont v. Postmaster Mills v. L.Ed.2d 398 488-89. statute, Nor must the to be declared campaign “dirty plaintiffs for tricks.” Texas long So The this case are not as- identity printer prints serting some privilege an absolute of associa- identity, his own the trickster and privacy anonymity. They tional and presumably any from he is free sanc- fear consequences of a disclosure if there were affirmative tion. Even requires publish statute which them to sanctions, penal since there is no re- proximity in close to the senti- quirement that the research the ments advertised their names and ad- identity submits dresses. This court believes that re- printing, there advertisement for quirement places a substantial burden campaign trickster’s upon assurance printers personally upon identity identity. will be his true The the first amendment itself. The defend- goal prevention campaign “dirty suggested ants have bur- likely tricks” is not to be achieved and, den is economic 14.10(b). art. therefore, unprotectable. To reach such a conclusion we would have to discard Secondly, the informed voter-candi- language long Supreme of a line of policy, is, date laudable as it not suf- Court cases which deal with the first infringe- justify ficient substantial newspapers ment on first amendment freedoms. Cf. Minnesota, su- booksellers. Near v. Collins, 516, 538, Thomas v. Cf. pra; Sullivan, supra; Bantam Books v. (1944) L.Ed. 445 Lew- Grosjean Co., supra; v. American Press (three- Baxley, F.Supp. is v. judge California, Pittsburgh supra; Smith v. 1973). et. M.D.Ala. The statute Pittsburgh Press v. Commission on Hu- provides identity also Relations, supra. man person paying for the advertisement be enabling disclosed, with a view to here, The statute which has the dis- effectively. voter to vote more curtailing possibility print- tinct identity printer coupled with his ing activities of some or all these supposed provide list of advertisers is printers, is no less restrictive than the opportunity of a double check on forty years statute struck down almost are; yet, who the advertisers mean- how ago Grosjean. statute, too, That af- ingful opportunity is, light pocket newspaper fected the book of the possibility that dishonest tricksters publisher; pocket yet, the effect on the truly identify themselves, will not re- quite logically book was seen to have a question. mains a much more drastic effect on the future argument the amount of publishing and the information to be campaign expenditures can be better as- public. received It was not the plausible certained does seem most published by editorial content the news- statute, sweeps use for the also paper which itself the court concerned broadly. example, printers too For with. required keep could be expenditures records of the report reprisal of candidates and The fact that a authorities, them to the state without take an form economic does cushion printing identity very their ad- reprisal or render the burden on the True, vertisements. a candidate or significant. first amendment less general public member of the who wish- Pittsburgh Press, supra, the Court to find out the candidate es how much expressly itself to a limits situation spends particular on a item of advertis- question: not in which financial ruin is ing may time it if he an easier argue Pittsburgh printer directly, Nor does Press can call the but a call Austin, might its financial the ordinance threatens such where records viability any significant impairs kept, impossibility is not such an that it way ability publish distrib- justifies printers’ its the burden on the newspaper. ute first amendment its left L. must not be to stand. The guessing game. And, in NAACP 675-676. Ed.2d supra, Alabama, said: the Court “persons paying definition advertising” identity should be left rank- of its Revelation of definition, legislature for but as the exposed those members and-file complying reprisals, now with it is loss of stands statute to economic members vague impossible physical coer- almost because is “so employment, threat intelligence pub- men of common must of that necessarily guess cion, manifestations and other meaning and dif- hostility. at its lic ” application . fer as to its . . . 462, 78 U.S. 357 Connally Co., v. General Construction the believes This court 385, 127, 391, 126, 269 46 S.Ct. 70 U.S. probabili a demonstrated plaintiffs have reason, the L.Ed. 322 For that engender in ty reprisals sufficient phrase “person paying for the advertis- significantly burdens fear which ing” unconstitutionally them is on its void first their face. arguments policy insufficient State’s therefore, conclude, por- We that that burden, espe the to overcome substantial 14.10(b) tion of art. Elec- the Texas statute, of the without cially the since “Any printed tion Code which reads : published or operate much clause, would fensive political advertising shall also way operate with as it would the same printed on it the name and address importantly, it could More clause. the publisher per- or and the narrowly to achieve drawn more paying advertising,” son for the is un- goal. desired State’s enjoin constitutional and from State its enforcement. FOR VAGUENESS MERITS—VOID BUE, Judge (specially District con- the statute Our decision curring) : quoted is has mooted overbroad question of whether not the unde I concur the result reached gives “publisher” fair notice word fined majority, though join in even I cannot however, remains, printers. There employed portions the rationale or not of whether opinion. regarding My decision the con- “person paying for the advertis words ing” stitutionality 14.10(b) is not of article apprise is sufficient upon based the denial of the First place precisely whose name he is printers, Amendment since Plaintiffs submit on advertisement. possess any, I do not but believe phrase to a number could refer rights of rather the denial of the individuals, example, the advertis persons who hire their services. ing agency paying the candi bills of the Amend is evident that First date, organization campaign which protects spoken ment the written or agency, represented by advertising itself, expression of ideas word but person money ear donates views, concerning policy, social advertisement, marked for religious g., beliefs, See, e. Pitts etc. among himself, candidate others. Pittsburgh burgh Press v. Comm. Co. plaintiffs point out further Relations, 376, 385, 93 Human 413 U.S. the various interests which the election 2796, (1973); New 37 L.Ed.2d 757 suggest law seeks advance would Sullivan, Times U.S. York Co. v. 376 identity disclosure of a different 710, 254, 265-266, L.Ed.2d 11 84 S.Ct. among the choices several States, (1964); 354 Roth United v. available. 484, 1304, 476, L.Ed.2d U.S. 77 S.Ct. (1957). Accordingly, protec 14.10(b)

Article with carries penalties explicit lim- criminal must tion of the Amendment is not be more First pages. its See contained within speakers, extends items ited to authors Pittsburgh Pittsburgh Press v. writ- Co. who distribute those as well to supra Relations, Sullivan, of Human 372 Comm. word, Books v. Bantam ten Furthermore, 386, 93 S.Ct. 2553. 631, 9 L.Ed.2d 83 S.Ct. actively publisher newspaper California, involved (1963); 361 U.S. Smith he (1959); in the distribution that which L.Ed.2d 205 4 Alabama, 80 S.Ct. prints. Contrary printer, he 66 S. Marsh v. repro just means of (1946); v. not a mechanical Lovell 90 L.Ed. 265 Ct. Griffin, printed duction word. 58 S.Ct. express ideas (1938), or who L.Ed. 949 Furthermore, find; I do not for much See, through types e. of conduct. above, other expressed the same reasons as District, g., Moines School Tinker v. Des printers’ First Amendment 503, 89 S.Ct. right violated article association is Louisiana, (1969); Brown v. 14.10(b). right association, like L.Ed.2d 637 protected speech, of free (1966). However, speech conduct or expression promote to of ideas. order nothing expresses political or so- that of beyond to It is that freedom debate subject importance to First is not cial engage in for association the advance- g., See, protection. e. Roth Amendment insepa- ment of is an beliefs and ideas supra, Chap- States, 485; v. United ‘liberty’ by aspect rable assured 568, linsky Hampshire, v. New 315 U.S. Due of the Four- Process Clause (1942); 766, 62 86 L.Ed. S.Ct. 1031 Amendment, teenth which embraces Schmidt, (5th Karr v. 460 F.2d 609 Cir. speech of Of freedom course, .... 1972). Thus, implicit any it is in con- it is immaterial whether sideration of First Amendment sought by advanced beliefs to be speaker that a what the court determine pertain political, to association eco- expres- expressing or actor is and if this nomic, religious cultural matters or worthy pro- sion is of First Amendment print- case, tection. instant In the Alabama, 449, v. N.A.A.C.P. 460, 357 U.S. ers, by actions, express nothing. their 1163, 1171, S.Ct. 2 L.Ed.2d 1488 78 They argue they do not that are denied (1958). right print anonymously to their right ‘association,’ is support own ... opposition in views or right contrary, than they more ing; to attend a meet- to a candidate. To the right express right print anonymously includes the to seek the that by philosophies one’s they feeling attitudes or way for which have no one group membership by Indeed, anonym- or they affilia- the other. a seek ity expressing any type tion with it or other lawful means. avoid printers Association in that context is a form do the seek conviction. Nor expression opinion They merely distribute .... ideas. receive orders from clientele their and return 479, Connecticut, v. Griswold 381 U.S. product hiring the finished to the 483, 1678, 1681, 85 S.Ct. 14 L.Ed.2d 510 their services. (1965). however, case, In the instant regard, In this a printers is to be dis- association and those tinguished publisher from the aof news- who their is not for the hire services paper. they Both purpose are similar in expressing any thoughts re- held quire printing press. services of a printers; rather, purely it is However, similarity there ends. relationship. Indeed, It' commercial every is newspaper inherent in printers anonymity that edi- they seek do because judgment torial involved, is not necessarily not hold the views of their expression viewpoint Purely speech contained on customers. commercial page, the editorial also protection selec- not entitled tion, rejection placement of news g., First Amendment. v. E. Valentine

815 Standing 920, Sedler, 52, As stitutional. See S.Ct. Chrestensen, 62 316 U.S. (1942). sert Tertii not believe Constitutional Jus Su I do L.Ed. 1262 86 599, preme Court, 71 Yale L.J. 612-26 should be association commercial “Litigants, per therefore, position. are sacred a more accorded challenge mitted not a statute because holding printers However, in expression their own free are rights of Amendment First judicial violated, pre but because of impor- situation, in this own their assumption diction statute’s press man printing and the tance very others existence cause not be underplayed. operates it not to be fore the court refrain from constitu his questioned role It cannot tionally protected speech expression,” expression in- providing for a means supra Oklahoma, Broadrick v. importance aas dispensable. But Gooding S.Ct. at 2916. Accord v. Wil First Amend- exercise means son, L. hiring his services those ment (1972); Ed.2d Dombrowski Pfis v. give Amendment him First not does ter, 85 S.Ct. rights beyond self-ex- his own (1965); N.A.A.C.P. v. But Accordingly, printer who pression. ton, 432-433, merely performs function a mechanical (1963); 9 L.Ed.2d 405 Thornhill Ala exercising Amendment his First bama, 88, 97, summary, seek (1939); Taft, L.Ed. 1093 Mancuso v. anonymously them- print when (1st 1973); 476 F.2d Le Cir. nothing support- saying selves Robinson, 933, Flore v. F.2d 434 936 ing nothing. con- cannot Their actions (5th 1970), Cir. vacated on other protected the “speech” as stitute grounds, (1971). 446 F.2d 715 Amendment. First course, special Of printers law’s though treatment Even the action standing issue the First protection is not accorded any preclude Amendment area does not mean that Amendment, does not First person may challenge challenge a statute concern- of their to consideration ing speech. necessary 14.10(b). free is constitutionality of Al article aspects “justiciable other relevant of a though may be the statute controversy” present. be printers See Flast v. applied to the constitutional as Amendment, Cohen, 95, 1942, 83, 392 U.S. 88 20 S.Ct. since have First (1968). L.Ed.2d 947 In in- rights, action still these same uncon-, volving declaratory judgment challenge facially the statute as constitutionality law, of a state there because the bar stitutional. This is so adversity must be sufficient standing challenge warrant is to assert such adjudication. federal v. traditionally disregarded See Golden when a statute dealing Zwickler, 108, 956, 103, with First Amendment 394 U.S. 89 S.Ct. facially attacked as unconstitutional Ullman, (1969); 22 L.Ed.2d 113 Poe v. overbreadth. v. See Broadrick Okla 1752, 497, 367 81 U.S. 6 L.Ed.2d homa, 610-613, 601, 93 S.Ct. 413 U.S. (1961); Note, 989 The First Amend- 2908, (1973) ; L.Ed.2d 37 830 United Doctrine, ment Overbreadth 83 Harv.L. Raines, 17, 22, States v. 362 80 S. U.S. 844, (1970). Furthermore, R. 863-64 519, (1960). Ct. 4 L.Ed.2d 524 cases although necessary falling ambit, within this narrow party challenging the statute be the sub- Supreme by Court has it will held that ject prosecution, of a criminal see Doe v. pass practice considering its usual 188-189, 179, Bolton, 410 U.S. 93 S.Ct. if first the constitutional 739, (1973), it L.Ed.2d is neces- 35 201 challenger individual have been violated sary plaintiff subject to “a be whole, and will consider as a statute regardless real threat of Poe v. Ull- application enforcement”. of whether its challenger man, 507, supra can be viewed as uncon- 81 S.Ct. 438, 415, (1963). presently under considera- U.S. 83 S.Ct. 328 case In the req- readily apparent have tion, we are the state is found to Once it is affecting, regulation, on uisite interest a court with a statute concerned face, if this interest burdens Amendment must consider First its speech unnecessarily protected press. chal- other activities. Plaintiffs have vagueness g., Grayned Rockford, See, e. lenged because of v. statute unconstitutionality. 2294, 104, 116-117, Unlike L.Ed.2d 92 S.Ct. and facial not, Broadrick, expression (1972). challenged ‘must arti- “Free statute abridged regulation, guise 14.10(b) with in the not concerned cle ” regu- 117, regulation conduct, Id. at 92 S.Ct. but with or denied.’ 2304, 496, citing Hague CIO, speech in the form 307 U.S. itself v. lation (1939). Further, threat of L.Ed. 1423 59 S.Ct. printed material. challenged statute is enforcement case, are faced with we In the instant printing of sufficiently real deter balancing interest of the the task support anonymous literature preventing with fraud election state bring printers’ Ar- this action. publishing cam individual in that of the impris- provides 14.10(b) fines ticle anonymously. paign It is be literature noncompliance its with onment a com yond question that the state directly operates The statute terms. integ preserving pelling interest Al- plaintiffs in this action. See, e. rity of elections. and orderliness presented though has been the Court Brown, 94 S. g., v. Storer enforcement of no evidence of with 725-726 39 L.Ed.2d Ct. penal provisions, in- there is no article’s Rockefeller, (1974); Rosario v. intend to dication that state officials (1973); 752, 761, Ameri 93 S.Ct. 1245 disregard Accordingly, the law. supra White, Party of Texas v. can alleged justiciable con- 1296; v. Jenness n. 761 Fortson, necessary consider troversy, and it is 431, 442, 91 S.Ct. article of their claims that the merits (1971); Bullock L.Ed.2d 554 facially 14.10(b) unconstitutional Carter, vagueness. void for same At rights First Amendment are ac- While recognized indi time, it is well among “preferred position” corded a right his First to exercise vidual has York, rights, v. New Constitutional Saia anonymously. rights See Amendment 558, 1148, 561, 92 L. 334 U.S. 68 60, S.Ct. California, Talley 80 S. v. 362 U.S. (1948), right of free Ed. 1574 (1960); 536, v. Bates 4 L.Ed.2d 559 Ct. See, speech g., e. Ad- not absolute. 412, Rock, 4 516, Little 80 S.Ct. 361 U.S. 39, Florida, derly v. 87 385 U.S. S.Ct. (1960); Ala v. N.A.A.C.P. L.Ed.2d 480 bama, 242, (1966); Lou- 17 L.Ed.2d 149 Cox v. 449, 1163 357 78 S.Ct. 536, 453, isiana, L. 379 U.S. 85 S.Ct. 13 right not, anonymity (1958). of This (1965); Ed.2d 471 Schenck v. United however, unqualified. See United States States, 47, 247, L. 249 U.S. 39 S.Ct. 63 808, Harris, 98 v. 74 S.Ct. 347 U.S. (1919). Thus, Ed. 470 considera- (upholding (1954) Federal L.Ed. 989 constitutionality tion of the of a statute registration requiring Lobbying of Act allegedly infringing First Amendment Congressional paid Lobbyists and disclo balancing first must involve a contributions); Publish of Lewis sure test to determine if the interests of the ing Morgan, 229 Co. v. regulating expression state in substan- (1913) (upholding L.Ed. 1190 57 outweigh tially those of individual. publisher, edi required disclosure of prevail, interest, ap- To seeking the state’s it tor, managers, etc., newspaper compelling. See, g., pears, must be e. mailing privileges); Veter second class Party White, American of Texas v. 415 Nam for Peace Viet ans & Reservists (3d Regional Comm’r., S.Ct. 39 L.Ed.2d F.2d 676 v. licensing require- 1972) (upholding (1974); Button, v. N.A.A.C.P. 371 Cir. prohibition Enemy Act); Trading anonymous in the of all cam- with ments of (5th paign Fowler, F.2d 315 Cir. literature. v.Wirtz Labor-Manage- (upholding the 1966) Although argues the state that article Reporting re- Act and Disclosure ment 14.10(b) applies is limited it persons report quiring of activities only activities, to election I do not find by employers em- to influence hired ployees pass limitation is sufficient to this activities); organizing Powe muster. no cir- constitutional Under 1968) (up- Miles, (2d F.2d Cir. v. right expres- cumstances is the of free regulation holding college requiring ad- sion more than in the demonstrations). See notice of vance pro- arena, opportunity is no better Branzburg Hayes, also these vided for the exercise of jury (1972) (grand can pub- on election. than “[D]ebate newspaper require disclosure uninhibited, robust, lic issues should be sources). may though] wide-open, [even recognition the state’s in- vehement, caustic,. full With well include regulation proc- of the election sharp terest unpleasantly on attacks sometimes ess, I concur conclusion government public officials.” New 14.10(b) majority is uncon- Sullivan, that article York Times v. I in its reach stitutional overbreadth. In the decision after due consideration prevent this midst of current zeal to examples the authorities above as campaign practices cited seem fraudulent In each in- valid disclosure laws. prevailed in 1972 election to have in which a statute stance disclosure year, legislatures should not and courts upheld, been sight been the statute has nar- funda- that which is most lose regulate only rowly society. importance drawn to the narrow mental our spectrum necessary activity that is overesti- cannot be of the lone dissenter protect private A right speak the state’s interest. mated. anonymously undermine the To regime ability under jeopardize individual valid disclosure laws cited could still exercise to dissent. expression anonymously. his Thus, the view of am in accord with I 14.10(b), however, Article is not limited 14.10(b) majority un- that article prohibiting election fraud. seek- requires the insofar as it constitutional merely ing investigation to facilitate the publisher to be name of the fraud, prohibits anony- such campaign published Al- on all material. publication mous of not fraudulent though First literature, campaign literature, but all to conduct his busi- Amendment whether the contents true or not. anonymously, the disclosure ness prohibition anonymous expres- purpose primarily for the name is sion is thus direct and No immediate. identifying author distributor seeking campaign individual to have ma- printed material and constitutes printed terial appli- is immune from its abridgment Amend- First latter’s 14.10(b), Under cation. necessary article it is not my rights. By decision ment virtue party subject ability regarding government law seek some benefit, such rights of Amendment First assert mailing privileges, as second class others, the chal- my consideration engaged specialized that he be in a occu- lenged necessarily has been statute pation, paid lobbyist; such as a nor does majority. Ac- than that broader prohibition operative become if cordingly, I hold further would speech involved, conduct as well as in that re- unconstitutional statute is college in the case a demonstration. paying quires name prohibiting directly While a law appear on the the advertisement publication of fraudulent literature abridges thus material face constitutional, would no doubt be simply as well. compelling state First Amendment interest

Case Details

Case Name: Printing Industries of Gulf Coast v. Hill

Court Name: District Court, S.D. Texas

Date Published: Dec 23, 1974

Citation: 382 F. Supp. 801

Docket Number: Civ. A. 73-H-1261

Court Abbreviation: S.D. Tex.