Weaver v. Jordan

In Bank. Mar. [Sac. No. 7682. 1966.] al., WEAVER et Respondents,

S. L. Plaintiffs and v. FRANK JORDAN, Secretary State, etc., M. as Defendant and Appellant. Lynch, Attorney General, Thomas C. Barrett, Charles A. Attorney General, and Ganulin, Deputy Assistant James General, Appellant. for and Attorney Defendant

Loeb Loeb and Herman F. Selvin & as Amici Curiae on Appellant. behalf of Defendant Waters, Scott, Krueger

Nossaman, Riordan, & William L. Scott, Hughes, Allan Hubbard, Browne Blair & for Reed Respondents. Plaintiffs and Myers, Works, O’Melveny Pierce William Moore, & D. James Lorenz, Jr., Krause, Marshall W. D. Robert M. O’Neil and Wulf Amici Melvin L. Respondents. as Curiae on behalf of Plaintiffs BURKE, J. Defendant appeals judgment from an adverse declaratory in a relief action which attacks as unconstitutional

2á8 at the Novem- adopted the electorate initiative measure

an proponents its election, and entitled general ber 1964 (hereinafter “the Act” Television the “Free draftsmen ballot, 15 on the Designated Proposition .Act Act”). as subscrip- business of home in California undertakes to ban appear, we have con- reasons which will For tion television. correctly the Act cluded that trial court determined guaranties abridgment an be invalid as free state and federal Constitutions. provisions of the Act are set forth full the mar-

gin.1 Following plaintiffs incorporators as effective date (with Secretary filing tendered to defendant of State for requisite fees) incorporation articles of certain forma- corporation of a to be tion named Advanced Tele-Communica- (hereinafter tions, TC), purpose engaging Inc. for the to 1 An Act Preserve Free Television in California. People The of the State of California do enact as follows: Section 1: This Act shall be known and be cited as the Free may Television Act. existing Section The has public 2: heretofore had available to it over receiving television categories stations and owned privately many sets different programs, including sporting. of free television telecasts of original events, discussions, dramatic political news presentations, variety pro- grams, programs, programs motion and pictures other of interest. of television in development The the United States has been based upon making existing in of use interest public policy proper public the the of providing interesting range and channels, television a broad of and programs eharge viewing of informative free to the The informa- public. programs in instruction and entertainment derived from such are tion, the The of busi- development subscription interest. television public any would have an adverse effect licensed television upon presently ness charge which do not make a and would tend to viewers; stations to members the who have made a substantial invest- the of deprive public, receiving of choice in television of their freedom equipment, present ment programs, information, to and of the instruction with television respect It now and to them. would readily freely entertainment available and it would be to For those and related reasons monopoly. tend create of State. policy to the contrary public this to view television any pro- 3. The shall have the Section charge regardless gram of how such home set free of in on a television program in radio wires, lines, whether whole or transmitted, part by is waveguides, mierowave transmitters or other elec- cable, eoaxial waves, thereof; and no person means or combination any mechanical tronic or right. eharge with such make a inconsistent indirectly, or shall, directly category, program program” form, kind, of a includes any “Television category, form, kind, nature any similar to substantially type nature or date hereof free on or before the effective was transmitted or type eharge television set” television sets. “Home on home reception of generally used or customarily electrical device electronic or any includes programs in home. the of television reception for the understandings, agreements, following or contracts, 4: Section void and transmission, absolutely are such free inconsistent with where (a) date the effective made or executed after those enforceable: are not (b) date to on such effective those in existence and Act, this of executory. they that are extent subscription the home television business.2 Defendant refused grounds they on to file the articles did not conform to they provided in proposed corporation law that that the was engage in business, purposes to an unlawful of proposed corporation they unlawful in were that are circuit.’ hotel, profit provided, which this to the viewer based as any shall fornia fornia and system attractions made substantially tion of television electronic or electrical device transmitted grams sets in California. television on home television and to with all other acts which poses tional power. any limitations fied power; exercise the applications, tions. validity this Act, and each reason invalid. passed, or clauses to be unconstitutional tional viewer based recover to hotel or be “d) “c) “b) “a) 2 The articles of Section Section 7: Section 6: authorizing Section subparagraphs entitled, time after as Part by exercise for which this or educational ^[*] upon corporations television It make To establish a To To To transmit ’ means of or include irrespective threefold apartment further, programs. As 8; 5: have corporation might systems engage to apartment on or before December the intention so, power a powers similar Chapter Any person This transmit If may addition, this direct remaining of Division any this Act shall be If and to exercise systems, and any section, programs wires, that part nevertheless be any television (a) incorporation any part exclusively or related Act be corporation antenna section, sets; a substantial of the fact program television corporation only originated to adjudged charge applicability amended; subscription damages nothing in antenna through or shall not apply to or transport to of the First lines, any used whether closed formed formed, incidental who is the words invalid, portion his or related to State in sentence system system this Act upon category, generally or in of a sentence or coaxial the home. costs of suit and reasonable programs all systems, where no this Act to be unconstitutional the Revenue that in (c), is formed these program injured state in article provided, to the under applicable the business of this Article SECOND as such laws are of this such subscribers states other than California. establish powers number category, television on remains or with the conflict or Extraordinary may to California any ‘home television inclusive, cable, articles, systems form, nature or systems, adjudication the laws clause full or open circuit. respect by the violation of this Act may is invalid in one or more of its for program one or Act. customarily enjoin content, clause community conferred however, ground are: in effect herewith, free or operate or to that purposes expressly extent form, kind, viewing system for the the words ‘television It thereof, where no television any whether of its more Taxation Code, of this such violation and shall Second pursuant is hereby declared that subscription or to charge content, this Article for Session now in effect and that combination charge by extent in all valid applica- shall not affect or a want of constitu- used for the antenna on home television is hereby repealed. shall be construed sections, sets’ viewing subject or for any other its the laws of Cali would any non-profit systems type Act this charge closed nature or is made programs attorneys to and under constitutional for regardless or to view such include community, corporation which was ‘1 systems have been any matter television reception set forth adjudged sentences Second; The pur or together is made over its in thereof, recep- educa- open Cali- non codi- type pro- fees. and any at or 300.) Plaintiffs (See Corp. Code, § by Act. proscribed declaratory relief, con- for brought action this thereupon and the federal state Con- both Act violates tending that stitutions. judgment plead- for on and moved answered Defendant judgment. summary Defend- for plaintiffs moved ings, and opin- already related this matters answer admits the ant’s generally of information belief denies ion, for lack but complaint allegations forth the busi- further set proposed corporation, plans and intentions of the that ness subscription operating businesses” are now “theatre several exempts California, and that Act such businesses from abridges provisions.3 The trial court concluded Act guaranties constitutional both the state federal of free XIY; (U.S. speech. Const., Const,, Amendments I and Cal. I, plaintiffs’ 9.) Accordingly, art. summary motion for § judgment granted, was judgment defendant’s for motion pleadings ensuing judgment on the was denied. From the allegations 3 More specifically, so denied are that TC, proposed and intends plans as follows: corporation, engage in “8. . . . to the business of television subscription and to. subscription establish a television system the State of California. “9. ... to establish a closed circuit subscription system. television Programs transmitted will by [TC] be disseminated individual over coaxial of subscribers cable network channels .premises leased from Individual subscribers will telephone companies. be connected to the ‘ ’ leading n network coaxial by coaxial cable to the drop subscriber No television set. modification of subscribers’ sets is required. Beeeption programs transmitted others will not be of television affected said . . system. . during “10. . . . subscribers will be able to select hours of initially one of three television channels or music subscription sup- transmission plied by [TC]. sporting . motion events, over . . said current present system “11.... programs, programs and other special educational plays, pictures, attractions charge program Each subscriber will pay to subscribers. programs does not intend to transmit he choose to view. [TC] for advertising its pri- its said intends system; [TC] over commercial from received subscribers. of revenue will fees source mary viewing over its said a substantial system transmit “12. . . . to originated programs states other and attractions made number of programs be transported and attractions will said than California; to California.” from said states behalf of by [TC] transmitted or on following allegation: At companies several present denied is the Also ‘ ‘ conducting which en- in California are businesses are individuals and including sporting programs, presenting gaged attractions special coaxial cable network closed circuit a by individual viewers to events, (“theater subscrip- companies from telephone said businesses by leased are television”); programs attractions presented and special said tion charge program based upon viewer pays each theaters; at and viewed viewing privilege said of for the businesses the owners of said to content subscrip- . . . ‘theatre programs. initiative exempts Said attractions ’ ’ ’ its provisions. businesses from tion television

241 accept and file the tendered declaring duty of defendant (Code appeal taken. Civ. was incorporation, this articles of 437c.) Proc., § press, speech and re of freedoms First Amendment process Four by clause ligion protected the due are (Smith v. by from invasion state action. Amendment

teenth 147, 215, 4 (1959) 361 149-150 S.Ct. U.S. [80 California 697, 209]) ; Minnesota 283 205, Near v. U.S. L.Ed.2d People 625, ; Woody (1964) 61 L.Ed. v. S.Ct. 75 707 1357] [51 Cal.Rptr. 69, ; 394 P.2d Katzev 716, 718 Cal.2d 813] [1] [40 Angeles (1959) 360, [1a], 52 365 County Los Cal.2d v. rights paramount 310].) Such have a 366 P.2d [4] [341 preferred “ place system, and ‘ra in our democratic remedy provided between the and the evil tional connection might support curbed, legisla in other to be contexts ’ ’ ’ against process grounds, attack on due will not suffice. tion (American Civil Liberties v. Board Education Union 167, Cal.Rptr. 55 647, 178-179 359 Cal.2d [9-10] [10 1259], quoting 45, P.2d 94 A.L.R.2d from Thomas v. Collins 516, 315, 323 530 430].) U.S. L.Ed. [65 Accordingly, any system the courts have declared that “ prior expression restraints comesbefore the courts ‘bear ’ " ing against heavy presumption validity. constitutional (Freedman Maryland (1965) 51, 57-58 [85 ; Books, 13 L.Ed.2d Bantam Inc. v. Sullivan 649] 9 L.Ed.2d 584].) fact the Act now adopted before us was anas general initiative measure electorate does not alter our approach to the claim of First infirmity. Amendment In West Virginia State Board Education v. Barnette (1943) S.Ct. 1178, 674], A.L.R. pointed the court out that very purpose “The of a Bill of Rights was subjects to withdraw certain from the vicissitudes political place controversy, to beyond them the reach of majorities and officials and to establish legal them prin as courts. One n ciples applied life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other rights fundamental may not be sub ’’ vote; mitted to they depend on the outcome of no elections. (See also Wallace v. Zinman (1927) 200 Cal. 585, 593 [5] P. 1351].) A.L.R. Inasmuch rights as free press are worthless without an effective means of expression, guar anty extends to both the content of the communication and

242 (Wollam City v. dissemination. employed for its

the means Cal.Rptr. 1, 276, 284 (1963) Springs [5] [29 59 Cal.2d Palm Cooper (1949) 336 77 S.Ct. U.S. [69 Kovacs v. ; 379 P.2d 481] (1948) New York ; Saia v. 513, 10 A.L.R.2d 448, 93 608] L.Ed. 1574].) 1148, L.Ed. 92 558 S.Ct. 334 U.S. [68 by by picture, radio and motion Communication protection. (Freed falls within the constitutional television Superior 57; supra (1965) 51, 380 Maryland, man v. U.S. (1954) 346 Films, Department U.S. Inc. Education v. Joseph Burstyn, v. 286, ; Inc. 98 L.Ed. 587 S.Ct. 329] [74 495, 777, 96 L.Ed. (1952) 343 499-502 S.Ct. Wilson U.S. [72 (1952) 451, 343 ; v. Pollak U.S. Public Utilities Com. 1098] ; Radio Show 813, 461-462 96 L.Ed. Baltimore S.Ct. [72 1068] 497, 507], (1949) 300, v. 323 cert. State 193 Md. A.2d [67 (1949) 252, ; 912 338 S.Ct. 94 L.Ed. den. U.S. 562] [70 (D.C. Rumely 166, 1952) v. United States F.2d 177 Cir. 197 App. Broadcasting ; American D.C. Co. v. [90 United 382] (D.C.S.D.N.Y. F.Supp. 374, 389, States 1953) 110 affd. on grounds (1954) other 593, 347 U.S. 284 S.Ct. 98 L.Ed. [74 ; etc., (1957) Wrather-Alvarez v. Hewicker Inc. 147 699] Cal.App.2d 509, 512 236].) P.2d [5] [305 press right of freedom includes “The right print, right or to but the to dis to utter only right (Italics receive, the to read . . . .” tribute, 479, Connecticut 381 U.S. 482 added.) (Griswold v. ; 1678, see also Martin 14 L.Ed.2d v. Struthers S.Ct. 510] [85 (1943) 141, 862, 882, 143 ; S.Ct. 87 L.Ed. [63 1313] 501, 276, 505-508 Marsh v. Alabama U.S. ; Grosjean American 90 L.Ed. Press Co. 265] ]; Zeitlin v. Arne 660 bergh (1963) Cal.Rptr. 59 Cal.2d [1] [31 152].) encompassed P.2d Also are amusement and en exposition tertainment as well as the of ideas. “The line be informing entertaining tween the is too elusive for protection right. Everyone that basic is familiar with propaganda through instances of fiction. What is one man’s amusement, (Winters teaches another’s doctrine.” v. New York 840].) 92 L.Ed. purports The Act now at totally prohibit issue home subscription television. subscription We are told that tele- origination vision consists of the programs transmission of subscribers, programs be transmitted either (“open radiowave circuit”) (“closed or cable circuit”). The Act undertakes to ban both methods transmission when charge is made to home (Act, viewers 3, ante, 1), fn. but § viewing making charge when therefor a forbid does entirely clear is Thus the Act a theatre. audiences to the home speak ideas may or disseminate no one that and, no television, likewise, that pay through medium of may pay a television transmission listen to in the home one images conveying ideas such ideas or transmitted or receive proscribed suppression of The outlawed medium. over the purports the home of transmission to medium as a vehicle censorship, advance, so absolute; it amounts to total be concerned. far as home viewers are existing presently The and crucial between chief difference California, subscription television, home television in collecting exceptions4 with the method revenues: rare exist- ing home television collects its revenues from commercial advertisers; subscription television collects its revenues from provides subscribers. This difference the means effectively prohibit the Act undertakes to subscription home television, imposing while at the same against time no bans subscription against theatre existing television or home tele- vision which support derives its financial from commercial advertisers.5 When a restriction of a First Amendment freedom is of potential such scope unlimited may it imposed only be present avoid a “clear and danger” that a substantive evil

will otherwise result which the state has a prevent. weighing of interests which the courts have at times found necessary appropriate when considering a restriction more language narrow in application6 or in dispensed with if, here, as the enactment is so broad impose as to complete expression ban of and communication through specified 4 We have mind-the occasional “educational” station supported at least in part by voluntary contributions from viewers. significant 5 We are also told that a identifying characteristic home subscription television from the viewer’s standpoint is that will he greater have a much programs ehoice the selection of transmitted over subscription existing television systems, than over systems; that in sub scription television there is a program direct correlation between content and revenue collected; if obviously, subscribers do not like the subject programs matter of will they not pay to them see and the revenue of the subscription television station is immediately diminished; it consequently will be the viewer, not who sponsor, selects the pro grams broadcast over subscription television systems. See Breardv. Alexandria City A.L.R.2d Martin 335] ; v. Struthers, supra Virginia 319 U.S. 141, 143; West State Board Education Barnette, (1943) 319 supra U.S. 624, 630, cf. 633-634; Kovacs v. Cooper, supra (1949) 336 U.S. 88-89. In subscription television.7 home this

medium, in ease a “clear is such that there determines this court the event warranting the evil danger” of a substantive present and suppression guaranty of freedom of the constitutional also deter necessary that we it then be speech press, or will by “evil,” discounted any gravity of such mine whether the “justifies” of freedom improbability, invasion County Los “danger.” (Katzev v. avoid order to 366, cases there 360, and Angeles, supra (1959) 52 Cal.2d 494, (1951) 341 U.S. cited; see also Dennis v. United States Virginia West ; 857, 513-514 1137] Barnette, supra (1943) 319 U.S. State Board Education v. Education, v. Board 624; American Liberties Union Civil Diego supra 175-176; Danskin v. San 55 Cal.2d by the First mines what Unified court must be doubtfully In Thomas v. “For character of the a sanction P.2d declares great, the Sch. Dist. these reasons justified 885].) or standard Amendment remotely, that “the Collins, indispensable by permitting dubious intrusions. right, governs the choice. any clear but supra (1945) preferred place . . not of the attempt public interest, . gives Cal.2d clear democratic to restrict these limitation, which deter- given present danger. liberties a [Citation.] freedoms threatened not those liberties [1], 545 our And it is sanctity secured scheme . . . ^[3] Accordingly, orderly whatever occasion would restrain dis- appropriate persuasion, at place, cussion time and must support public danger, impending. have clear actual Only gravest endangering paramount abuses, interests, give permissible (See occasion for limitation.” also American Education, supra Civil Liberties Union v. Board 167, 178-179.) Cal.2d Any suggestion of the existence of a “clear and present danger” to be obviated the Act here involved utterly specious. would be (in The Act itself states 2) that § “development” subscription television business would have an “adverse existing effect” television sta proposition tions—a very at the least is debatable. The further declarations of the (§2) Act subscription tele vision “would deprive tend” to viewers of their “freedom choice,” and of the “information; instruction and enter- 7 See Canon v. Justice Court 61 Cal.2d 459-460 446, 455-456, [6b] [39 Cal.Rptr. P.2d cf. 428]; People Woody, supra (1964) 61 Cal.2d 716, 727 [3b]. them,” and freely available readily and now tainment appear of un monopoly, likewise to create “tend” would declarations if such validity. But even veracity or certain they demonstrate facts, would unquestionable accepted as to be any evil danger of substantive present clear no attempted suppression sweeping and absolute by avoided in its Rather, trial court commented as the by the Act. suggested appears herein, any “evil” opinion memorandum by “im illusory, and well discounted speculative and to be probability by ’’ Act itself. In the event that recitals of the the actually did and entertainment one medium communication competitor part supplant displace the course of or exercising protected press speech, only freedoms of that is possible expected consequence of free the traditional and by viewing listening public choice turn or members of the they monopoly prac of the communications wish to If receive. appear actually or if the tices ignored interest suffers or is enough it will then appropriate be time to apply regulation constitutionally permissible (See within limits. Broadcasting National Co. v. United States (1943) 319 U.S. 190, 997, 1344].) 226 S.Ct. 87 L.Ed. [63 But the out right ban here undertaken pointed Act cannot stand. As City out in Wollam v. Springs, Palm supra (1963) 59 276, [7], 284 regulate Cal.2d “the means of com [a does necessarily not outright sanction prohib munication] ition.”8 And as stated in Shelton (1960) Tucker v. 364 U.S. 479, 488 247, S.Ct. 5 231], [81 L.Ed.2d though “even governmental purpose legitimate and substantial, pur that pose pursued cannot be by means that broadly' stifle funda personal mental liberties when the end can be narrowly more ’’9 achieved. Further, the freedoms of press and of pro First

tected Amendment rest on “the assumption that possible widest dissemination of information from diverse antagonistic sources is essential to the welfare of the public, press that a free is a condition of a society.” free National 8 See also Assn. Adv. (1964) Colored v. People Alabama 377 U.S. 307-308 288, S.Ct. 12 [84 1302, L.Ed.2d 325]; Kovacs v. Cooper, (1949) 336 (1960) U.S. supra 77, 81-88; v. Talley 362 U.S. California 4 60, 536, L.Ed.2d 559]. 9 See also v. Randall Speiser 357 U.S. 513, [78 S.Ct. 1332, 2 L.Ed.2d in which 1460], the court held unconstitutional a requirement of a “declaration” loyalty as a stating: condition of tax exemption, “In . practical operation . . this procedural device must necessarily pro duce a result which the State could not command It can directly. only ’ ’ result a deterrence of speech which the Constitution makes free. 1, 20 United States Press v. (Associated Connec- ; v. also Griswold see 2013] 482.) (1965) 381 U.S.

ticut, supra curiae that of amici of defendant assertion expression because it does freedom not invade Act does merely direct forbids subscription television, but prohibit home, devoid of is programs transmitted to charges for correctly observed that “This is The trial court substance. asserting prohibition expression no comparable to newspapers pictures or if a motion exist the case would showing adopted requiring their distribution were statute ’’ charge. expression protected by When the First without involved, “It of course matter Amendment no place auspices.” (Smith takes under commercial dissemination supra 150.)10 California, In York New v. Sullivan Times Co. 265-266 1412], L.Ed.2d recently A.L.R.2d it was held publication that a expresses communicates information, grievances, opinion, protests recites abuses, claimed is not protection from removed press guar free appears anties the fact that it paid as a advertisement newspaper. a The court there declared “That the Times was paid publishing for the advertisement is as immaterial in this connection as is the fact newspapers and books are sold (Cf. City Breard v. supra [citations].” Alexandria, (1951) 622, 642; Joseph 341 U.S. Burstyn, Wilson, Inc. v. supra 495, (1952) 501-502; 343 U.S. Books, Bantam Inc. Sullivan, v. supra (1963) 372 58, 64, U.S. 6; fn. see also 53 Cal.L.Rev. 1418-1425.)11 holding Our that no basis has been shown sug gested which would warrant the sweeping restriction here attempted by the not, Act is of course, repugnant to the ac- 10 See also Near v. (1931) Minnesota, supra 283 U.S. 697, 720 (“Characterizing the publication [of malicious, scandalous and defama tory matter as newspapers] a business, the business as a nuisance, does not an permit invasion of the against constitutional immunity re straint”); Murdock v. (1943) Pennsylvania 319 U.S. 105 [63 870, S.Ct. (that 87 891, L.Ed. 146 1292, religious A.L.R. organization 81] solic ited “purchase” of its books and pamphlets did not weaken its protection). First Amendment 11The dissemination of protected expression under commercial auspices distinguished is of course to be from the dissemination com “purely mercial” communications such advertising—which as mercantile do not enjoy the First Amendment protection (See otherwise accorded. Murdock (1943) v. Pennsylvania, supra 319 U.S. 105, 110-111; Valentine v. (1942) Chrestensen 316 U.S. 55 52, [62 S.Ct. 86 920, L.Ed. New 1262]; York Times Co. v. (1964) Sullivan, supra 266.) 376 U.S. 254,

247 various practices or business cepted principle that the disseminating their beliefs expression or of those

media of a reasonable and non regulated or taxed in may be or ideas proscriptions of antitrust discriminatory manner.12 Thus the newspapers, applicable to with were held the Sherman Act publish means court that “Freedom to the comment ’’ appropriate some, comment also freedom for all and not (Associated States, supra Press v. United the instant case. (1945) 1, 7, 19-20; 326 see also Lorain Journal v. U.S. Co. 181, (1951) 342 U.S. 143 United States S.Ct. 96 L.Ed. [72 162].) Fair Labor Standards Act and the National Labor applied newspaper Relations Act have been likewise (Oklahoma Walling Press Pub. (1946) business. Co. v. 327 186, 192-193 494, 614, ; U.S. 90 L.Ed. A.L.R. 531] Mabee v. White Plains Pub. Co. U.S. ; 90 L.Ed. Associated Press v. National Labor 607] Relations Board U.S. 953].) In Cooper, supra (1949) Kovacs v. an ordinance was sustained which barred sound trucks from broadcasting in a loud and raucous manner on the streets.13 City Alexandria, v. supra And in Breard denominating a local ordinance a nuisance and prohibiting door-to-door solicitation of orders for goods, with previous request by occupant out home, was sus against applied tained First Amendment attack as to one sell ing magazines. By contrast, in Martin Struthers, supra 141, 142, an ordinance which made it “un person any lawful for distributing handbills, circulars or ring other advertisements to the door bell, sound the door knocker, or otherwise summon” householders to their door purpose receiving” “for the of material, such was held in applied valid as distributing one advertisements for a religious meeting. holdings of Breard and Struth- particularly apt ers are in pointing up the infirmity of the Act now before us. That Act attempts, absolutely and com pletely, deprive right householders of the to receive com munications from subscription home television (Struthers), 12 See Murdock v. (1943) Pennsylvania, supra 319 U.S. 105, 110; Angeles v. Gospel Army Los City Cal.2d 232 [163 P.2d 704], appeal dism. 331 U.S. 543 [67 S.Ct. 1428, 91 L.Ed. 1662]; City of Corona v. Corona etc. Independent 115 Cal.App.2d 382, 390 [252 P.2d 56], cert. den. 346 U.S. 833 [74 S.Ct. L.Ed. 356]. 13 Cf. Saia V. New York, supra striking U.S. 558, down as prohibiting overbroad an ordinance the use of sound in amplifiers public without places permission from the chief of police, where no standards were prescribed for the exercise of that official’s discretion. com- appear that such it does no under circumstances whereas their re- absent their homes into intrude could

munications (Breará). subscription quest via a Co., supra (1936) 297 U.S. Press Grosjean American expressed with have the views we support to lends 233, likewise imposed a Grosjean In a statute respect to the Act. making receipts newspapers gross percent tax having advertising of over “charge” a circulation for copies per week, held to be an unconstitutional was 20,000 rights. reasoned impairment of First Amendment The court “a device in that the statute was deliberate calculated guise curtailing of a tax” which had effect of revenue ‘‘ restricting limiting circulation, and and of thus in of information to which the is entitled circulation guaranties.” (Pp. 244-245, of U.S.) Further, virtue the constitutional opinion, states the “It is not intended of 297 by anything suggest we have said to that the owners news- any ordinary papers are immune from of the forms of taxation ordinary support government. But of the this not an single kind, long history tax, but one with a form against press. . . The hostile misuse the freedom the . tax money not it takes from the here involved is bad because pockets appellees” restricting but because of its effect of public.14 of information to the The Act the dissemination present only would this court case curtail before Grosjean, utterly prohibit revenues, as in but would collecting complete subscribers; from home it thus constitutes a them subscription home on the of a television ban establishment disseminating California, and, consequently, on the system ideas, system. speech, entertainment over such a As sweeping scope already stated, suppression so can be prevent present danger” only to a “clear and sustained brought otherwise be about there would “substantive evils” against protect. has a which the state No such “ ’ ” ’ ‘‘danger or evils are shown here. note further that In this connection we the radio and tele- regulation Broadcasting sustained National vision Co. v. (and States, supra 319 U.S. 190 United other cases relies, followed) upon which defendant was which limited Federal gov- of the Communications certain rules Commission (6th 1944) Walling Pub. Co. v. Cir. 14 Seealso Sun 140 F.2d (“No has been cited and none has been found . . . ease which holds that newspaper barred from the channels of commerce as a means effectuating regulation, enforcing of an administrative an administrative or a court decree order.’’); City Baltimore v. Abell A. S. Co. of Md. 119]. A.2d erning programs—rules purpose the selection of whose was to practices growth avoid hinder would new networks deprive listening public many and would areas of deprive service and would local of much of their stations programs. points (Pp. out, The 198-209.) choice court among things, other that the rules had been authorized FCC Congress governmental by a absence of fearful “in the might monopo control the interest be subordinated to broadcasting (P. domination in the field.” 219 of 319 listic U.S.) suppression sweeping We convinced are subscription attempted by television, as the Act now home to the Act n encourage us, would, contrary declarations, before existing monopolistic and foster domination television sta deriving support tions their financial from commercial adver of,communica Monopoly (See 11, ante.) field tisers. fn. growth permitting can best be of that field tion avoided through pro media which will endeavor directions possible range vide the widest and choice ideas and of expression. Our conclusion that the Act speech violates the free press guaranties renders unnecessary it plaintiffs’ to discuss imposes

further contention that it likewise an arbitrary classi- equal protection fication in of the violation clauses of the federal and state Constitutions. judgment

The is affirmed. Traynor, J., McComb, J., Peters, J., C. Tobriner, J., and Peek, J., concurred. MOSK, J. I dissent. colleagues

My learned have determined that the initiative fall, they at hand must enactment plethora cite a support First Amendment cases of their conclusion. No denigrate one can either the citations or the revered constitu- principles they They tional enunciate. are indeed irrefutable. If case, this were a freedom of majority opinion join unassailable, would be and I would in it. it, however, my IAs see vanquishing associates are an

illusory adversary. target speech; The here is not it merely power matter dollars and cents and people gets the state to decide who them. opinion majority accurately points out that the “chief presently and crucial existing difference between home tele- California, subscription vision television, is the collecting I it of revenues.” find difficult to make the method collecting leap difference, the method of from that crucial purely simply—to choice the revenue—an economic speech conspiratorial the fundamentals of free abso- censorship” “suppression” and “total feared lutes of colleagues. my chasm between the economic There is a vast government apparition at hand and the censor- element convincingly bridge ship. majority opinion fails to that The gap. nothing question prohibits Act in which or

There is the any way holding, expression, publication, the or restricts opinion, idea, thought, any view, or belief. dissemination circumscription any on the whatsoever content of There is no prohibits only communication, or written. The Act oral upon persons in homes to or charge imposed their hear see of coaxial disseminated means when communications Congress through airwaves, which or the has deter- cables domain.1 mined to be is found in its section nucleus the Act The right “public any shall have to view that asserts charge” program on television set free of a home television directly charge indirectly, person shall, or make and “no right.” section, any Neither nor with such inconsistent Act, any purports circumscribe man- part of the other programs, or or character of the manner of content ner the gravamen charge The is the for serv- thereof. communication ing television sets. home guarantees speech; it First Amendment freedom of right paid guarantee the he exercise does goes only compensa- to the element of Since the Act freedom. right expression, First tion, Amendment not to the (See at hand.2 Associated Press v. in the case irrelevant 89 L.Ed. States United Broadcasting Co. v. United States ; National 2013] Communications pur the Federal Commission 15, 1966, On February jurisdiction regulation all virtually to include to extend ported This a future portends question antenna television. community forms of preemption. of federal majority 2 Although in the violation was not reached a free States v. C.I.O. in United opinion Rutledge, page concurring Justice at opinion 92 L.Ed. 1849], interesting involved on the reverse of point observation contains this ‘1 turn on make its protections Amendment did not The [First] here: for the publication reader or can pays, pay, the hearer or whether privilege hearing freedom or written Neither pronouncement. the oral nor the of peaceable restricted press assembly of speech ’ ’ and do who pay. can to persons ; 226-227 L.Ed. Lorain 1344] Journal Co. v. United States 342 U.S. 155-156 181, 96 162].) Nevertheless, L.Ed. I shall discuss several First Amendment tests that have been and can be applied and, seen, as will be under each of them this enact- ment fails to offend constitutional sensibilities. appears all, First of it majority finds this Act

presumptively ignoring unconstitutional, the well-established legislative presumed rule that a enactment is to be valid and persons adversely affected must sustain the burden of demonstrating constitutional intrusion.3 Neither First nor Fourteenth Amendment alter principle. cases the basic As concurring opinion Justice Frankfurter wrote in Kovacs Cooper (1949) v. 94-95 448, 93 513, 10 A.L.R.2d any legislation : “the claim that 608] is presumptively unconstitutional touches the field and the Amendment, First Amendment Fourteenth insofar concept ‘liberty’ specifi- as the latter’s cally protected by contains what is First, has never commended itself to a ” majority of this Court. Douglas explained “why Justice has First reason rights preferred position

Amendment are often said to have a They preferred in our constitutional scheme. are because the Constitution, protects construed, against abridgment as them by provisions government. either States or the federal Few other Rights applied of the Bill of have ever been in full (Douglas, Liberty force the States.” Almanac An (1954) p. 123.) concept “preference” vastly That different from the theory precedence casually many opin- of unlimited stated articles, and ions and now the basis of considerable academic suggested Professor Herbert Wechsler has conflict. that “the ‘preferred position’ controversy hardly point—indeed, has a really it never has been clear what is asserted denied to preference Certainly concept perni- have over what. implies any simple, cious if it that there is almost mechanis- determining priorities having tic basis of values constitu- (Wechsler, tional dimension. ...” Neutral Prin- Toward ciples 25.) Law Constitutional Harv. L. Rev. denying presumptive unconstitutionality, In addition to flatly propriety “pre- Justice Frankfurter denied the of a position” for First Amendment in Kovacs ferred cases Harris, Freedom the Businessman L. 3 See Iowa Rev. 196. 200. 77, opinion] supra, [concurring 90

Cooper 336 U.S. : (1949) contemptuously, phrase,” he said somewhat “that “This is a opinions uncritically crept into recent of this Court. some has phrase, thought, if I a it carries the deem it mischievous any touching may subtly imply, that law communi- it presumptive invalidity.”4 Professor cation is infected with In agrees book, Frankfurter. The Paul Freund with his A. (1961) (at p. Supreme 75), States he the United Court cautioning Frankfurter wrote: “Mr. Justice position’ epithet ‘preferred for those if against freedoms ’’ analysis. epithet to becomea substitute threatens majority appear pre- to have Nevertheless, the invoked a having sumption unconstitutionality, and, improvidently present danger” “clear and done resort to the so, next test. suggest they again, respectfully I have fallen into Here error. present danger” test under employ To the “clear and interpretation in a far too broad these circumstances results wrote, phrase. Professor Freund a time-honored 44) States, supra (at p. Supreme : “No of the United Court phrase present rapidly we utter the ‘clear matter how ’ they closely hyphenate words, are not danger, how we weighing They convey to tend a for the values. substitute certain is the com- of certitude what is most a delusion when web of freedoms which the plexity of the strands ” judge disentangle. must application Prevailing authority of the “clear and limits involving danger” to those cases restriction present rule apposite in speech, the test is not the content statutes, “general regulatory in which there are situations incidentally content of but to control the intended (Konigsberg Bar limiting v. State unfettered exercise.” 997, ; 6 L.Ed.2d (1961) 50-51 S.Ct. 366 U.S. 105] [81 Communications Assn. v. Douds American effect see same ; 94 396-397 925] [70 (1919) 249 U.S. States Schenck v. United 247, [39 470].) 63 L.Ed. foregoing recognized In distinction. This court has Angeles (1959) 52 County Los Cal.2d v. Katzev danger applied present was 310], clear and test P.2d a [341 again in Dennis v. United States discussed the issue 4 Frankfurter 95 L.Ed. with reference 1137], U.S. 494 arrangements,” “shifting most to describe expression apt an economic competing methods of communication. economic conflict here between county a absolutely prohibiting ordinance the sale of comic consisting persons books of a crime theme to years under 18 age. subsequent In cases, involving regulations and restric- upon campaigning political tions by officials, activities adopted balancing the court application test and eschewed present of either (Canon Katzev or clear and danger. v. Cal.Rptr. Justice Court Cal.2d 228, 393 ; P.2d Fort v. Civil Service Com. 428] Cal.2d Cal.Rptr. 625, ; 392 P.2d City Kinnear County & 385] (1964) San Francisco 61 Cal.Rptr. 341 631, Cal.2d 392 [38 of P.2d 391].) appears The rationale in clear: Katzev there was publication, interference with content of the in whereas subsequent tangential speech cases there was a mere interfer- resulting governmental purpose. ence from other Professor Thomas I. Emerson noted that same distinction critique in problems his formidable of First Amendment in (1963) 72 present Tale L. J. clear danger 877. The doc “grew trine out of cases where the restriction at issue was a prohibition expression by direct tions, criminal or similar sanc application

and is of doubtful to other kinds of inter expression. ference with freedom regulation ... And where the question directly punishing is not aimed at particular expression but utterance affects freedom of in a generalized way, more or indirect as in a tax law or a disclos requirement, ure the issues are not framed terms of specific specific danger. any whether a utterance creates a In danger event, present applied the clear and test has not been (Id. at p. 911.) in such cases.” application phase come of one We next of the “balanc ing test.” A First Amendment absolutist like Mr. Justice present ascendancy conceded Black has thé the so-called dissenting opinions balancing (e.g., test his Barenblatt v. (1959) 109, 1081, 140-144 States 360 U.S. S.Ct. 3

United [79 ; 497, El Paso v. Simmons 379 L.Ed.2d U.S. 517 1115] 446], 13 v. 577, L.Ed.2d and Scales United States S.Ct. [85 203, 782]). 6 L.Ed.2d He [81 agree suggesting appears to with the “cases that a law which might regulates indirectly primarily conduct but which also upheld speech on can be if the effect is minor in affect ( for control of the conduct.'' relation to the need Barenblatt 141.) supra, p.at States, v. United balancing longer test it is no sufficient to estab Under by merely showing of the First Amendment lish a violation speech. (American limitation on Civil has some there been

Liberties Union v. Board Education Cal.2d Cal.Rptr. 700, 4].) 210-211 379 P.2d If there ais reason legislative limitation, rights for the able basis constitutional Alleged impairments have of First Amend not been denied. rights by determining ment are “balanced” whether there relationship impairment and a a reasonable between sub compelling ject overriding (Canon state interest. 456.) (1964) supra, 61 Cal.2d Justice Court balancing theory originated in 1939 in Schnei- ad hoc 155], State, 308 L.Ed. der v. in Chief Justice reached ultimate definition Vinson’s majority Communications opinion for in American Assn. page which, at v. Douds particular “When conduct is 925], he wrote: order, regulation, interest of regulated abridgment partial indirect, conditional, in an results determine which of these duty of the courts is to speech, the greater protection conflicting demands interests two ’’ presented. particular circumstances under the by respondents to that made these A contention similar (1965) 381 argued Texas U.S. in Estes v. was 543], broadcasters main- in which television 1628, L.Ed.2d abridgment right of free an there was tained that using prohibited from they television were press because court held during A divided course a trial. cameras abridge- that there was no balancing upon the alternatives press, in right the court of free ment necessitated exclu- that decorum could determine discretion Similarly, a rule recent broadcasters. of television sion adopted of California under the Council the Judicial photographers bars chairmanship of the Chief Justice solely proper in courtrooms the interest from cameramen imposition justice. upon is no There administration rule, though it is. communication in such even free merely regulatory. prohibitory and not (Ed. compared may with statutes involved here be Act The permit seq.) use of school 16561 et Code, §§ governing buildings upon terms and conditions as the such Many to proper. school boards refuse board deems school events, charges for noneducational permit admission by political of funds solicitation to authorize decline others property. Education section Code users of school or social charge for or meet- “entertainments requires a rental charged or contributions” are admission fees ings where purposes. These economic restrictions sought for nonschool interpreted being have never been as a limitation speech. plain Certainly exercise of free it is to see that a valid distinction exists speech sehoolhouse between free all only to listeners and available monetary for a con- Equally arguable sideration. is a basic distinction between charge to communications the home without and communica- only upon payment to the home key tions of a fee. The speech, nor each instance is not thereof, content but the economic factor. exempt The First Amendment does not commercial enter though publishers prises, they even be or broadcasters, from regulation prohibition in manner which other busi ‘‘ subjected. As may press nesses be aspects, has business it special immunity applicable from has no laws business (Mabee general.” v. White Plains Pub. Co. ; see also Oklahoma 607] Walling

Press Pub. Co. 192-193 [66 614, 166 90 L.Ed. 531].) A.L.R. broadcasting It is clear that denied, despite licenses plea, company’s past a First Amendment if the business practices monopolistic (Mansfield were character Journal (D.C. Co. v. Federal Communications Com. 1949) 180 Cir. 28, 36), misrepresentations F.2d if the broadcaster made application (Independent Broadcasting his for a license Co. (D.C. v. Federal Communications Com. 1951) Cir. 193 F.2d 900), or if the prescribed broadcaster violates standards (National the Federal Commission Communications Broad casting (1943) supra, Co. v. United States 226- 227). government federal power has been held to have broadcasting advertising restrain of false any ques without (E. abridgment speech. tion of of free F. Drew & Co. v. (2d 1956) Federal Trade Com. Cir. 235 F.2d 739-740; Products, American Medicinal Inc. v. Federal Trade Com. (9th 1943) 426, 427.) 136 F.2d Cir. These numerous other decisions abundantly make it police governmental clear that the exercise of the or similar

power regulate public to business pre- interest is not by the fact activity cluded that the business is claimed to be generally protection within the of the First Amendment. Frantz, B. article, Laurent in his The First Amendment 1424, 1429, Balance Yale L. J. notes that balancing test, according Schneider, to apply only “should regulations time, place speaking manner of which, though neutral, speech, as to the content of may unduly limit communicating for otherwise available ideas to the

the means public. Douds, apply only it should when As reformulated regulating conduct, and is construed as where the the statute relatively speech minor deemed both and a effect on is mere ” regulation. by-product the conduct incidental of balancing case, to the instant we applying In find on one speech that free and its contents are un- of the scale side exploitation speech side, commercial of ; on the other affected public prohibited in sanctity of the home is inter- in the values, infirmity balancing no constitutional In that est. appears. rights majority that “Inasmuch as the of free declare means, without an press are worthless effective guaranty expression, extends both the content employed means for its dissemina and the communication Springs citing City Palm tion,” Wollam v. Cal.Rptr. 481], 1, 379 P.2d 276, 284 Kovacs Cal.2d York Cooper supra, 336 and Saia v. New U.S. 1574], But (1948) 334 (at proposition p. authority 284) for the Wollam is also of communication and the of the means use “the selection municipality not limitless. The issue rea such means regulations necessary as to such matters.” Saia sonable gave ordinance apposite, for there the unrestricted police control chief of dissemination of to a discretion hand, prohibited Kovacs, the other dissemi on information. through public streets; loud trucks on sound nation of ideas prohibi permissible. That the result was held to be this was regulation of mere was of speech instead little tion of regulatory enactments court, “All are moment, said the concerned, and prohibitory restrictions are so far as their merely as to a use streets is prohibition of this ordinance regulatory.” (336 U.S. at p. (Also Alex 85.) see Breard v. 95 L.Ed. andria “.Regulation 335], in it was noted that 35 A.L.R.2d prohibition. ”) necessarily has elements places could “be utilized sound trucks held that Kovacs open spaces off the streets” but not parks other such as that this amounted to a contended on streets. It was speech rights significant area, in a drastic curtailment held this did not constitute city. court of a streets communication ideas discussion “restriction pro- Similarly, case, instant the Act of issues. ...” programs into the charges transmitted for hibits television programs transmitting into the prohibit home; it does not

257 charging home or programs for the places other than the

home. A distinction between the places home and other for purposes economic seems no more tenuous than the Kovacs public distinction between public streets parks for use loud sound persuasive trucks. Whether a basis exists for the reposes here, classification as it Kovacs, did in legis- with the process. lative We next consider the enactment under the doctrine of eco nomic process,5 though due even since 1937, the Supreme Court of the United consistently States has repudiated the concept, perhaps restively somewhat of late. Professor Robert suggests McCloskey G. after exhumation of the doctrine that peace. it should rest (McCloskey, Economic Due Process Supreme and the Court: An Exhumation and Reburial, Sup. (1962) pp. Ct. seq.) Rev. 34 et After Ribnik Mc v. (1928) Bride 277 350 U.S. 545, 72 S.Ct. L.Ed. [48 proclaimed 56 1327], A.L.R. its restrictions over “business public affected with a interest,” theory totally repu was court, by Douglas, diated Justice for a unanimous in Olsen v. Nebraska 313 236 U.S. S.Ct. L.Ed. [61 1500], 133 A.L.R. requirement, said, There is no he that the state appropriateness make out case for the of the law. opinion suggest “Differences of on that score a choice which ‘should be by left where ... it was left the Constitution—to ” Congress.’ (Id. p. the states and to 246.) at Following Olsen, pellucid the court made its views in several other deci sions, notably Day-Brite Lighting, Inc. Missouri L.Ed. which it was 469]—in legislation said whether “offends the welfare” is not of the Optical business court—and Williamson v. Lee (1955) 348 Okla. 563], respects business, it was noted that debatable issues as legislative economic and social affairs were decision.6 (Also see United States v. Carolene Products Co. ‘5 ‘ legal subjected Few doctrines have been bitter criticism more ’ ’ testing regulatory legislation than this clause, the due process in The Professor Monrad Paulsen wrote Persistence Substantive Due Process the States 34 Minn. 91. L. Rev. He concluded that invalidation reason of the due process clause state laws seems “to ” be a matter of history. Douglas 6 Mr. Justice his in Williamson v. Lee opened opinion Optical (1955) 348 U.S. 483, Okla. 99 L.Ed. with 563], of these words; gone “The when this Court day uses the Due Process regula to strike laws,

Clause Fourteenth Amendment down state of business and industrial because tory conditions, they may unwise, thought.” or out with school of improvident, harmony particular 1234]; Carpenter, 778, 82 L.Ed.

U.S. S.Ct. [58 (1959) 45 and the State Courts Economic Due Process 1027.) A.B.A.J. field virtual abdication economic The result of this Tyson in judiciary been, noted Justice Holmes & has the Offices, Ticket Inc. v. Banton Theatre Brother-United 718, 418, 446 71 L.Ed. A.L.R. [47 subject compensation [dissenting opinion], “that, 1236] legislature may compensation due, forbid or is the when public any when it has a sufficient force restrict business McCloskey opinion This, Professor in behind it.” concludes Supreme page Review, supra, in The Court “is his article In policy of modern Court.” the at the case

the de facto public in the hand, a rare instance which force we have numerically precisely demonstrable. opinion is Justice) (then Traynor, in his dissent Mr. Justice Chief Dry Cleaners Board Cleaners State Thrift-D-Lux 29], legis 436, 449-450 P.2d discussed (1953) 40 Cal.2d power in broad field economics this manner: the lative power rights per to determine the Legislature has “The subject only to the limitations of United States sons, Constitution. A and the California [Citations.] Constitution not regulating commercial transactions does violate statute process Constitution unless it clause either due dispel presumption that it as to proved so unreasonable knowledge within the and ex some rational basis rests perience legislators. inquiry Judicial [Citations.] legislative judgment question, is drawn into must ‘where the any state of issue whether facts either restricted reasonably support could be assumed affords or which known present case, any The statute like it.’ [Citation.] private regulation enterprise, must be considered other Traynor progression then discussed from light.” Justice this holding regulation limited to industries early decisions McBride, (see Ribnik v. interest “clothed with 913]) [and found] Supreme discarded that test Nebbia v. States Court United 502, 531-539 78 L.Ed. York, 291 U.S. New 154) “Regulatory (at wrote in Carolene p. 7 Chief Justice Stone affecting to be legislation transactions ordinary pro commercial light unless in of the facts made known or unconstitutional nounced generally the assumption it is of such a character as to preclude assumed knowledge rational basis within the expe it rests some upon legislators. ’ ’ rience of the 4 in see of Stone’s controversial footnote Carolene, For a discussion (1956), 511-515. pp. Fisk Stone Harlan Mason,

259 (See also West Coast Hotel Parrish, Co. v. 300 940]. 703, 379 81 108 1330].) L.Ed. A.L.R. In Olsen Nebraska, 1500], opinion A.L.R. the court a unanimous over inquire ruled the Ribnik case and refused to into the wisdom challenged legislation. of . . . This court soon followed Supreme (Wholesale

the lead of the United States Court. Candy Bureau v. Co., Tobacco Dealers National & Tobacco supra, 486].)” Cal.2d P.2d A.L.R. phase (On regulation, in (1954) this economic see Notes Q. 561, 578-579; (1953) 2 L. Pub. 98; Cornell Jour. Law 196.) 37 Iowa L. Rev. long involving legislative In a series eases state incur- Supreme liberty, into economic sions Court has evolved a process prohibits formula that the due clause state restric- only they individual if tions on freedom are arbi- capricious, trary and foundation As without reason. will be seen hereinafter, I do not believe the restrictions here are of that promote public health, safety, To character. morals and power impose welfare, the state must have restrictions on reasonably of individuals which the activities relate to these legislation. objectives It legitimate must have a reasonable mitigate to cure or latitude for action social economic legis- if And it is clear that the court finds that the evils. judgment is within the area which lative reasonable men upheld. might differ, (Harper, is the law to Justice Rut- Bright (1965) pp. 97-98.) ledge Constellation

Having previously applied “balancing test” to ascer- hampered invalidly having if tain freedom of was negative approach conclusion, we now a reached a second balancing phase regu- economic "determine whether the justifies reasonable and thus lation is whatever incidental rights plaintiffs intrusion of these ensue. balancing

Taking account, all the factors into it is clear maintaining system expression of freedom of one problems complex any society most has to face. Self- self-discipline maturity restraint, required. are sophisticated. essentially highly theory is Members of the willing society on occasions to must be sacrifice individual advantage long-range goals. social and and short-term operates process necessarily And the context that subject powerful charged conflicting emotion and with (Emerson, Theory forces of self-interest. Toward a General 877, 889.) First 72 Yale L. J. Amendment

Adjustment rights meaningful concept. ais For it must apparent of expression be that the attainment freedom of is society. not aim of Professor the sole Emerson has written private of individual, freedom of “as expression itself, only an end in but it is not the is end of political In and aspects, man as an individual. its social free- expression primarily process dom of a or a for is method goals. reaching It a basic in the other is element democratic process shapes way vital it life, of and as a determines through society. it of democratic But is this the ends process society that a democratic will attain its ulti- alone expression Any theory of must there- ends. freedom of mate values, order, account other such as fore take into equality progress, and the need for sub- justice, and moral designed promote Hence to those ideals. stantive measures expression reconciling of problem of freedom a real there is objectives sought good soci- with the other values p. 907.) (72 J., at ety.” supra, Yale L. “There must be reasonable Stone once wrote: Chief Justice competing demands of freedom between accommodation hand, and interests of religion one other speech on the legislative upon protection. society some claims which have well- them is essential to the balance between maintain the To functioning government under a constitution. ordered constitutionally be made can absolute, and neither is Neither (Letter other.” of the implement for destruction quoted Mason, Harlan 23, 1944, Rutledge, Jan. Justice (1956) p. 535.) Stone Fiske phrase, contrac- portmanteau a not a is Freedom attempting Therefore, and action. expression tion legal which will take into doctrine a workable formulate system underlying our of freedom the basic factors account give effect to the fundamental which will expression and reconciling First Amendment embodied decision objectives, values and expression with other social freedom of “expression” and “action.” distinguish between we must Theory First Amend- a (Emerson, Toward General many seq.) L. 877 et The line (1963) 72 Yale J. ment clear, contexts it becomes obscure. but some situations Nevertheless, finding necessary, for all avail- the line becomes given be expression must hold that while authorities able subject regulation. In cases borderline protection, action is conduct is to treated as of whether the determination “the immedi- whether the harm is expression rests action regulation irremediable, and ate, it is whether whether maintaining administratively consistent with conduct is 47.) expression.” (Id. p. 917, system of at fn. freedom regulation action, here What we have the act of tele- charging monetary vising to homes consideration there- ; expression, do an for we not have inhibition of its mode or being Thus the content. ministratively Act meets Emerson’s test of ad- maintaining system consistent with of free- expression. dom of concurring opinion Justice Jackson’s in Thomas v. Collins 516, 545 U.S. S.Ct. 430], [65 makes significant a contribution understanding to the distinction speech

between freedom of and communication for hire. The range power pursuit “wider of over calling of a than over speech-making,” wrote, giving he after a number of illustra- tions, “is due to the different effects which the. two have on empowered protect. interests which the State is to The mod- perform, attempts ern state duty owes to protect to public purpose from those who seek for one or another to money.” obtain its To effect, the same see the rule discussed in Cantwell Connecticut v. U.S. 305 [60 84 L.Ed. 1352], A.L.R. “general that the regulation, interest, in the of solicitation ... is not open any to objection, though constitutional even the collec- religious purpose. regulation tion be for a Such would not prohibited previous constitute restraint on the free exercise religion interpose or an inadmissible obstacle to its exer- cise.” See also Prince v. Massachusetts 321 U.S. 158 645], prohibition 88 L.Ed. against which a street solicitation children was held not to an uncon- religion. stitutional interference with freedom of To the same Gospel Army City Angeles effect is Los (1945) 27 Cal.2d 232 P.2d 704]. (1951) supra, v. Alexandria 622, 644, pre Breard sents a factual situation not dissimilar to the instant case. sought Breard had a of courteous crew solicitors who to sell

magazines contrary from door to door to a prohibitory local constitutionality balancing ordinance. The turned “a the conveniences between some householders’ desire for publisher’s right privacy publications and the to distribute precise way soliciting brings that those for him think weighing the best results.” After conflict court con p. (at 645) cluded great that it would be “a misuse of the guarantees speech press guaran of free and free to use those publica community to admit the solicitors force a tees to ’’ premises appear of its residents. It would home to the tions compel speech to free State no a misuse of to be less majority expressed desire of a contrary to the California, It no for hire into homes. to admit television citizens, pay television say those who do not desire answer compelled people were not see of Alexandria it; refuse magazines. As the court to Breard’s or to subscribe solicitors Fourteenth p. 642), “The First and Amend (at held there as absolutes. Freedom of been treated have never ments can talk or distribute that one press not mean does Rights other than those one chooses. where, when and how adjustment rights, By we involved. advocates are can orderly expression and an life.” liberty of full both have ease, the com in the instant key was, as it is Breará The aspect communications. mercial problem apposite our Remarkably is Valentine v. Chres 86 L.Ed. A tensen 1262]. municipal forbade distribution in ordinance the streets or public places containing of handbills other commercial mat alleged personal offender circulated handbills with ter. message and a commercial polemics on one side on verso. The upheld, Roberts, and Justice for ordinance was a unanimous impermissible the distinction between valid and made court, (at 54) p. prohibition crystal unequiv clear “This court : has proper places ocally that the streets are for held the exercise communicating information and of the freedom dissemi though nating opinion that, municipalities the states and regulate privilege public in appropriately the inter may unduly proscribe est, they may employment burden or its thoroughfares. public equally We are clear that the in these imposes government no such restraint on as Constitution advertising. purely Whether, respects commercial and to pursue gainful may promote occupation extent, one a what activity adjudged such shall be streets, in to what extent user, legis derogation of the are matters for a (Italics added.) judgment.” There is no rational lative society prohibit ability of explanation for the commercial impotent but to be when it desires to in the streets ism invasion of homes. control commercial question is, Act here It be that the well v. Connecticut Stewart Griswold words of Justice [dissenting 1678, 479, L.Ed.2d 510] uncommonly silly But “an law.” the role opinion], propriety that of judiciary to substitute view is not legislative long process, as as the court finds no constitu- Black, in Griswold, tional inhibition violated. Justice expressed also frequent doubt that the court should his “sit aas duly supervisory agency legislative over acts of constituted their because of the bodies and set aside laws Court’s belief adopted legislative policies are unreasonable, un- capricious adoption wise, arbitrary, or irrational. The of such holding loose, flexible, uncontrolled standard for laws finally achieved, unconstitutional, if ever it is will amount to power great unconstitutional shift of to the courts I say am to (At bad for constrained will be believe courts ” p. country. 521.) for the and worse must not oblivious to the admonition We be of Justice (1951) supra, States Frankfurter in Dennis v. United [concurring opinion], policy- 539-540 that “direct province. making best to competing is not our How reconcile legislatures, business of they interests is the the balance displaced judgment not to ours, is a be but to strike respected pale judgment.” of fair unless outside the And Dennis, judgment “We again, said, he are set aside the legislate duty only it is to if of those whose there is no ’’ basis for it. reasonable process balancing competitive In our economic interests, question whether “there no now reach the we reasonable pale judg for this Act and it is “outside the of fair basis” plaintiffs challenge who ment” and whether the stat pleadings—since validity testimony have their no ute’s pleadings— matter was decided on was taken and the “palpably arbitrary beyond it shown rational (State v. Industrial doubt erroneous.” Acc. of California [310 P.2d 7].) (1957) 48 Com. Cal.2d may of the defendant and amici Contentions curiae be following syllogism: reduced to the industry the free television bears a demonstrable a. rela- public tionship welfare, convenience, morals, health and protected by government economy, and therefore should be in public interest; the impairment of pay b. television threatens the benefits of presently enjoyed by public; the free television preserve television, public c. to the asset free the process

through legislative may steps take such as are impairment by necessary pay to thwart television. major premise syllogism may minor or of the The be weak debatable, hardly unprecedented but or this would in the disputatious posture justify does not

legislative arena. A captious logic finding matter of law the is or the as a arbitrary.8 Indeed, foregoing capricious or the conclusions another, in form or was advanced both con- theme, in one legislative hearings persuasive the gressional and in argument to the voters at the time this Act was made wholly are sound or adopted. Whether the contentions fac- legislative sup- a reasonable belief their tual, if there be balancing police power state’s the test the port, under prohibition activity permits of an or business unquestionably thought may reasonably be to threaten destruction activity or business deemed impairment of some other important power legislative to be state’s welfare, (Miller morals, economy, or convenience. health, (1928) 276 L.Ed. Schoene 568], )9 end, perfectly proper. It foregoing, is as a desired and less drastic means could be might that other be said purpose protecting accomplish free television found to exploitation home, that avoiding in the commercial the. baby throwing with the bath out Act here results suggested and other Perhaps could be other devices water. regulation, adopted. of economic But in the area alternatives if ends, to the valid, means are related are and the may the ends among appropriate from legislative process select selectivity question represents means. The enactment legislative of their people state the exercise of the second-guess judicial function to power. not the It

legislative choice alternatives. put way in Holmes it this Lochner Justice v. New York 75-76 (1905) 198 U.S. 937] [dis embody senting opinion] : “Some of these laws convictions or judges likely are prejudices which share. Some not. embody particular is not intended to constitution But a paternalism theory, organic whether and the economic state, citizen to the or of laissez to the It relation faire. in the United States Chafee, Speeeh p. 406, Free 8 See length immunizing discusses at some the bases for the home author the from commercial intrusion. He found a new which he labeled of the home. “freedom striking analogy the Miller case bears instant case. Apple 9 The agricultural Virginia. growing West principal pursuits was one of subject indigenous state and was of a The cedar was to the small red harbored that was harm industry. trees, however, parasite lumber A that all red cedar trees state required ful to trees. statute apple favoring over thus one was clearly industry another, to be destroyed, constitutional. held people fundamentally differing made for views, and the finding opinions accident of our certain natural and familiar shocking ought or novel and even not to judg conclude our question ment embodying whether statutes them ’’ conflict with the Constitution of the United States.

Perhaps appropriate peroration the most is found in the Traynor words of Chief Justice his dissent State Board Dry Cleaners, supra, page Cleaners at Thrift-D-Lux of 40 Cal.2d: “The real basis for the result reached majority opinion is an adherence to an economic view legislation regulatory] is not in the best interests of the [the general public. long But as Mr. admonished, Justice Holmes the economic judiciary and moral beliefs are not embedded There suppose Constitution. is no reason to judges qualified legislators are better than to determine programs adopted by what social economic should be instance, In “legis State of California.” this substitute for ’’ " ’’ lators, sovereign people. the words the judgment.

I would reverse the No. 9082. In Bank. Mar. [Crim. 1966.] PEOPLE, Respondent, Plaintiff THE v. PAUL VERGNE, Appellant. EUGENE Defendant and La

Case Details

Case Name: Weaver v. Jordan

Court Name: California Supreme Court

Date Published: Mar 2, 1966

Citation: 411 P.2d 289

Docket Number: Sac. 7682

Court Abbreviation: Cal.