Opinion
For Opinion on Hearing, see 39 Cal.Rptr. 228, 393 P.2d 428.
Ralph E. Kingston, Bijou, for appellant.
Jack R. Winkler, Dist. Atty., Placerville, for respondent.
FRIEDMAN, Justice.
A criminal complaint was filed in the Justice Court of the Lake Valley Judicial District in El Dorado County charging appellant with a violation of section 12047 of the Elections Code. He demurred and moved to dismiss the complaint on several grounds, among them that section 12047 is unconstitutional for vagueness and unreasonably infringes the free speech-free press guarantees of the federal and state Constitutions.
Elections Code, section 12047 provides:
His demurrer was overruled and his motion to dismiss denied. He then sought a writ of prohibition in the superior court, contending that, for the same reasons, the justice court had no jurisdiction to try him. His petition was denied and he appeals. It is appropriate that his contentions be considered in this prohibition proceeding. (Whitney v. Municipal Court, 58 Cal.2d 907, 27 Cal.Rptr. 16, 377 P.2d 80; Mier v. Municipal Court, 211 Cal.App.2d 470, 27 Cal.Rptr. 602.)
We reject the charge that section 12047 is void for vagueness. A criminal prohibition in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. (Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890; In re Newbern, 53 Cal.2d 786, 792, 3 Cal.Rptr. 364, 350 P.2d 116.) All intendments and presumptions favor validity of the statute. (In re Cregler, 56 Cal.2d 308, 311, 14 Cal.Rptr. 289, 363 P.2d 305.) Though individual words or phrases of a statute may have some uncertainty, judicial interpretation will import certainty if possible. (See Erlich v. Municipal Court, 55 Cal.2d 553, 558, 11 Cal.Rptr. 758, 360 P.2d 334; People v. Clenney, 165 Cal.App.2d 241, 253, 331 P.2d 696.) Lexicology may bestow multiple meanings on a single word. The abstract possibility of variant meanings does not create uncertainty if the word is sufficiently clear in its statutory context. Noscitur a Appellant complains of the many meanings of 'reflect.' The statute deals with a writing 'reflecting' on a candidate's character or political action. In the light of the elementary constitutional and interpretive rules we have described, appellant's complaint has no substance at all. The statute does not deal with a publication which 'reflects' in the sense of a physical rebound or diversion, nor with the mirrored image of a candidate, nor yet with take kind of reflection consisting of quiet philosophical contemplation. As used in this statute, the word has only one possible meaning. It refers to a communication which brings reproach, odium, opprobrium, discredit or disapproval upon the candidate, to the end that he will lose votes in the coming election. There is not the slightest uncertainty in this regard. 'Political action' is less clearly demarcated. Appellant says he does not know whether the phrase refers to the candidate's activity while running for officer or the activity of an incumbent public officer. To us the phrase is even broader. It covers not only the actions of one engaged in government, but also participation in the organization and activities of political parties or the efforts of competing candidates for public office, partisan or non-partisan. The breadth of the phrase is of no moment so long as persons of ordinary intelligence recognize its significance. This phrase gives adequate warning of the proscribed conduct and marks "* * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *." (Roth v. United States, 354 U.S. 476, 491-492, 77 S.Ct. 1304, 1313, 1 L.Ed.2d 1498, 1510-1511; Kershaw v. Dept. of Alcoholic Bev. Control, 155 Cal.App.2d 544, 549, 318 P.2d 494.)
Appellant claims discrimination. Derogatory campaign material must bear the name and address of a printer; hence, goes the argument, the sponsor cannot comply unless he takes the material to a printer and pays for it; in effect, handwritten or stenciled publications cannot be circulated at all. Further, if the material is not issued by a political organization, subdivision (b) demands that it bear the name and address of a voter; thus, the statute silences nonvoters. These assertions rest on statutory interpretations which we acknowledge only for the purpose of the discrimination claim.
With some exceptions not applicable here, courts will not consider a charge of unconstitutional discrimination by one not belonging to the injuried class. (Fox-Woodsum Lumber Co. v. Bank of America etc. Ass'n, 7 Cal.2d 14, 22, 59 P.2d 1019.) We have here no facts; rather, a pretrial attack limited to the face of the statute. Appellant does not show that the alleged writing was not printed by a printer, nor does he disclaim status as a voter. Because he fails to bring himself within the injured class, his claim of discrimination is hypothetical. He attacks the statute on grounds that are not shown to be applicable to himself. '[He] has not shown that the statute is being invoked against him in the aspects or under the circumstances which he suggests, and hence may not be heard to complain.' (In re Cregler, supra, 56 Cal.2d at p. 313, 14 Cal.rptr. at 292, 363 P.2d at 308.)
Elections Code, section 21 defines 'voter' as any (constitutionally qualified) elector who is registered to vote. Compare Elections Code, section 12049, dealing with campaigns involving ballot measures rather than candidates and requiring identification of a responsible 'individual' rather than voter.
Statutes similar to section 12047 have been adopted in a number of states. Many of these statutes are drafted in language
Commonwealth v. Acquaviva, Commonwealth v. Evans, State v. Babst,We reach the free speech-free press issue. Section 12047 is one of several Elections Code provisions designed to prevent undisclosed sponsorship of election campaign material. Section 11592 requires identification of the printer and publisher of printed matter 'having reference to an election or to any candidate' and prohibits campaign expenditures for noncomplying printing. Section 12049 is comparable in many respects to section 12047, demanding identification of the source of campaign material designed to aid or defeat ballot measures rather than candidates.
The First Amendment stricture against any law 'abridging the freedom of speech, or of the press' extends, via the Fourteenth Amendment, to state statutes. (Talley v. California, 362 U.S. 60, 80 S.C.t. 536, 4 L.Ed.2d 559.) Article I, section 9, of the California Constitution interdicts any law restraining or abridging liberty of speech or of the press. Freedom of association and privacy of association bear a close relationship with free communication and, in some circumstances, receive Fourteenth Amendment protection. (Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 82 S.Ct. 889, 9 L.Ed.2d 929; N.A.A.C.P. v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488, 1498.)
The present statute does not prohibit utterance, does not restrict its permissible range, imposes no censorship, and requires no license. (Cf. Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949.) It demands only that sponsorship be disclosed. It thrusts at anonymity, not content. The author may say what he likes so long as he does not hide. Yet, a prohibition against anonymity incidentally, but inevitably, tends to trammel speech. Forced disclosure of sponsorship discourages utterances which might otherwise be made without hesitation. Thus, in some circumstances, state-imposed disclosure demands will be nullified on free speech-free association grounds. (Gibson v. Florida Legislative Investigation Committee, supra, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929; Shelton v. Tucker, 364 U.S. 479, 82 S.Ct. 247, 5 L.Ed.2d 231; Talley v. California, supra, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; American Civil Liberties Union, etc. v. Board of Education, 55 Cal.2d 167, 10 Cal.Rptr. 647, 359 P.2d 45.)
The pursuit of legitimate governmental interests may justify regulations of conduct which indirectly limit the means used to communicate speech, even though content of the utterance is immune from interference. By way of example, a municipality may reasonably regulate sound truck broadcast of raucous noises even though an incidental effect is curtailment of a means of communication. (Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.) In one of the sound truck cases, Wollam v. City of Plam Springs, 59 Cal.2d 276, 284, 29 Cal.Rptr. 1, 6, 379 P.2d 481, 486, Mr. Justice Tobriner states the proposition in these terms: 'The right to speak freely must encompass inherently the right to communicate. * * * On the other hand the selection American Civil Liberties Union, etc. v. Board of Education,
The dilemma posed by this juxtaposition of individual freedom and collective interest has been approached through the formulary statement that general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, may be justified by dominating, valid governmental interests, a prerequisite to constitutionality which necessarily involves a weighing of the governmental interests involved. (Konigsberg v. State Bar, 366 U.S. 36, 50-51, 81 S.Ct. 997, 1006-1007, 6 L.Ed.2d 105, 116-117.) 'Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses.' (Breard v. Alexandria, 341 U.S. 622, 642, 71 S.Ct. 920, 932, 95 L.Ed. 1233, 1248; see also American Communications Ass'n v. Douds, 339 U.S. 382, 394, 70 S.Ct. 674, 681, 94 L.Ed. 925, 941.) Nor does the protection of the First Amendment afford an individual the right to resist disclosure in all circumstances; resolution of the issue involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances. (Barenblatt v. United States, 360 U.S. 109, 126-127, 79 S.Ct. 1081, 1092-1093, 3 L.Ed.2d 1115, 1128-1129; Bates v. Little Rock, supra, 361 U.S. at p. 524, 80 S.Ct. at p. 417, 4 L.Ed. at p. 486.)
We take note at this point of a conceptual battle between those who would balance First Amendment freedoms and those who regard such freedoms as absolute. (Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865; Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424; Mendelson, On the Meaning of the First Amendment: Absolutes in the Balance, 50 Cal.L.Rev. 821; Frantz, Is the First Amendment Law? 51 Cal.L.Rev. 729). Even an 'absolutist' such as Professor Alexander Meiklejohn concedes that the legislative body may carefully regulate the activities by which citizens govern the nation, while abstaining from abridging the freedom of those governing activities. (Meiklejohn, The First Amendment is an Absolute, 1961 Sup.Cot.Rev. (Univ. of Chi.) 245, 257.) Mr. Justice Black, while regarded as an absolutist, leaves room in Talley v. California Amendment is an Absolute, 1961 Sup.Ct.Rev. to prevent certain public evils. (362 U.S. at p. 64, 80 S.Ct. at p. 538, 4 L.Ed.2d at pp. 562-563.) In any event, majority opinion thus far rejects the concept of First Amendment absolutes. (Konigsberg v. State Bar, supra, 366 U.S. at p. 49, 81 S.Ct. at p. 1005, 6 L.Ed.2d at p. 116; Times Film Corp. v. Chicago, 365 U.S. 43, 47, 81 S.Ct. 391, 393, 5 L.Ed.2d 403, 406; American Civil Liberties Union, etc. v. Board of Education, supra, 59 Cal.2d at p. 211, 28 Cal.Rptr. at p. 704, 379 P.2d at p. 8; see also Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095, 1104, concurring opinion of Brandeis, J.) Judge Learned Hand's reformulation of the clear and present danger rule, as endorsed in Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 867, 95 L.Ed. 1137, 1153, hardly differs from the balancing process pursued in later decisions.
A regulation of conduct which incidentally affects the communication of ideas must serve a substantial public interest and be narrowly drawn to keep interference with communication to a minimum. It must be 'highly selective' in order to survive First Amendment challenge. (Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301, 304.) 'The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose.' (Shelton v. Tucker, supra, 364 U.S. at p. 488, 81 S.Ct. at p. 252, 5 L.Ed.2d at p. 237.) In the protection of constitutional freedoms, it is the duty of the court to determine whether the action bears a reasonable relation to the Bates v. Little Rock,supra,
Appellant's chief support is Talley v. California, supra, invalidating a city ordinance which broadly prohibited distribution of handbills not disclosing the name and address of the sponsor. The court stated: 'There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.' (362 U.S. at p. 64, 80 S.Ct. at p. 538, 4 L.Ed.2d at p. 563.) The prohibition against anonymity was subject to the infirmity that 'identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance.' (362 U.S. at p. 65, 80 S.Ct. at p. 539, 4 L.Ed.2d at p. 563.) A claim that the ordinance would require identification of those responsible for fraud, false advertising and libel was met with the rejoinder that the ordinance was not so limited. 'Therefore,' said the court, 'we do not pass on the validity of an ordinance limited to prevent these or any other supposed evils.' (362 U.S. at p. 64, 80 S.Ct. at p. 538, 4 L.Ed.2d at p. 562.) Accordingly, the ordinance was nullified as an abridgment of free speech and free press.
Relying upon the Talley case, the appellate department of the San Diego Superior Court has concluded that Elections Code, section 12049, an analogous measure prohibiting anonymous campaign publications for or against ballot measures, violates the free speech guarantee. (People v. Bongiorni, 205 Cal.App.2d Supp. 856, 23 Cal.Rptr. 565.) The court stated: 'As the enactment is worded, it would be as much a violation to issue a handbill laudatory of a candidate as one that sought to damage his reputation. This Court is unable to find sufficient distinction between the distribution of handbills generally and the distribution of handbills concerning elections to justify departure from the rule laid down by the United States Supreme Court [in the Talley case].'
We consider section 12047 with these concepts and precedents in mind. The Legislature here seeks to protect a valid and real public interest. Statutory regulation of campaign practices designed to protect the elective process against corrupt practices and undesirable influences is commonplace. (See State ex rel. La Follette v. Kohler, 200 Wis. 518, 228 N.W. 895, 69 A.L.R. 348; Annots. 69 A.L.R. 377, 85 A.L.R. 1146, 96 A.L.R. 582, 168 A.L.R. 886.) In California such legislation rests in part upon the mandate of article XX, section 11, of the California Constitution: 'The privilege of free suffrage shall be supported by laws regulating elections and prohibiting, under adequate penalties, all undue influence thereon from power, bribery, tumult, or other improper practice.'
Statutes such as section 12047 are intended to deter hit-and-run smear attacks which plague candidates during the campaign period. Sometimes these attacks are well financed. They may be made under the protective cloak of a 'front' organization whose real backers are well hidden from public view. Such attacks are frequently scurrilous; sometimes they are totally false, sometimes merely twisted to give an erroneous impression. Sometimes they are verbal, sometimes pictorial. Although a defense is difficult under any circumstances, candidates are especially vulnerable to anonymous lies and innuendoes in the days just preceding the election. The candidate-victim and his supporters simply do not have time, frequently do not have the financial means, sometimes cannot gain sufficient access to communication facilities, in order to get their denial or justification before the voters. The outcome of the election, that solemn expression of hard-won popular rights, may be altered by falsity and corruption. Candidates defeated by such methods suffer a personal loss; the injury to the elective process is far more momentous.
A notorious example was the Maryland election of 1950 in which United States Senator Millard Tydings was defeated for re- While the report of the Senate committee may have done much to vindicate Senator Tydings' good name, it did nothing to alter the result of the election. (Cf. Olsen v. Billberg, 129 Minn. 160, 151 N.W. 550.)
Recognizing, then, that section 12047 of the Elections Code is designed to accomplish valid governmental objectives, we turn to the question whether it is drawn with sufficient narrowness to justify its deterrent effect upon political free speech.
Certain kinds of expression, such as libel, slander and misrepresentation, are outside the scope of constitutional protection. (See Konigsberg v. State Bar, supra, 366 U.S. at p. 49, fn. 10, 81 S.Ct. at p. 1006, 6 L.Ed.2d at p. 116; Roth v. United States, supra, 354 U.S. at pp. 482-483, 77 S.Ct. at 1307-1308, 1 L.Ed.2d at pp. 1505-1506.) This statute is not confined to that kind of communication. The message frequently consists of truthful criticism of candidates as they vie for office. It is speech at its most vital, speech in the hotly competitive arena of debate preceding an election. Free expression in the elective process is a basic postulate of self-government. Without it, self-government is a contradiction in terms. Free expression as a political instrument must be a central object of First Amendment concern. (2 Cooley's Constitutional Limitations (8th ed.), pp. 898-922; Meiklejohn, op. cit., pp. 253-257.) A meaningful choice between competing candidates and issues cannot be made after a campaign in which criticism is silenced and reflections upon candidates are throttled. Candidates, even incumbent officers, are the legitimate targets of adverse reflections. (See Snively v. Record Publishing Co., 185 Cal. 565, 571, 198 P. 1; Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528, 535, 186 P.2d 737; Prosser on Torts (2d ed.) pp. 620-622.)
The subject of anonymous criticism may be an incumbent administration or incumbent officer. In campaigning for reelection, an incumbent submits his official and personal history to public scrutiny. At common law the doctrine of 'seditious libel' immunized an incumbent administration from public criticism. Protection against the reprehensible effects of sedition prosecutions was a central aim of the First Amendment. (Corwin, Liberty Against Government (L.S.U. Press, 1947) p. 157, fn.) As stated in one of the documents of the Continental Congress, the objective of a free press is to assure ready communication 'whereby oppressive officers Roth v. United States,
People v. Croswell, 3 Johns Cas. (N.Y.) Snively v. Record Publishing Co., MacLeod v. Tribune Publishing Co.,The Talley opinion mentions the important historical contribution made by anonymous political pamphlets and brochures, among them the Federalist Papers and the Letters of Junius. Thomas Paine's Common Sense was first published anonymously. (14 Dictionary of American Biography, p. 160.) In colonial days anonymous letters of protest against the British Government were collected and reprinted in pamphlet form. Samuel Adams, the 'grand incendiary,' used no less than 25 pen names in signing published papers and articles. (Bleyer, Main Currents in the History of American Journalism (1927) pp. 79-88.) At various times and places since colonial days anonymity of expression has been a dependable auxiliary to safe expression. Even in this twentieth century, in various parts of the United States, such needs have not altogether disappeared. Reprisal or the fear of it may stifle communication. The First Amendment protects unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion. (Roth v. United States, supra, 354 U.S. at p. 484, 77 S.Ct. at p. 1308, 1 L.Ed.2d at p. 1506.) The more unpopular the idea and the more unpopular its sponsors, the greater the practical need for anonymity as an assurance of free expression.
The California disclosure requirement is far removed from attempts made in other states to gain access to membership lists of organizations which face the hostility of dominant groups. Here the beneficial purpose of the statute is undeniable, the restriction not pointed to any one group or idea. Yet, decisions rejecting more invidious attempts demonstrate that, in the context of political association and communication, anonymity is an essential ingredient of free expression, protected against all but the rock-bottom minimum of governmental interference. (Gibson v. Florida Legislative Investigation Committee, supra, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929; Talley v. California, supra, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559; Bates v. Little Rock, supra, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; N. A. A. C. P. v. Alabama, supra, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; see Anonymity: An Emerging Fundamental Right, 36 Ind.L.J. 306; Note, 60 Col.L.Rev. 1173.) No less than censorship, forced disclosure may have the practical effect of an advance restraint on expression.
The present statute, without discriminating between true and false, criticism and defamation, denies the spokesman the anonymity which protects him in the utterance of truth and legitimate criticism. It imposes a criminal sanction on anonymous truth as well as anonymous falsehood, discourages anonymous but legitimate criticism along with anonymous scurrility. Operating in an area where constitutional doctrine requires a 'highly selective' statute (Louisiana ex rel. Gremillion v. N. A. A. C. P., supra, 366 U.S. at p. 296, 81 S.Ct. at p. 1335, 6 L.Ed.2d at p. 304, it trespasses on a wider area of communication than falsehood and defamation. It denies the spokesman the anonymity which protects him in the utterance A statute which does not differentiate between constitutionally protected expression and that which is not protected, indiscriminately imposing sanctions on both, is void on its face. (Talley v. California, supra, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559; In re Blaney, 30 Cal.2d 643, 655-656, 184 P.2d 892.)
This restriction on political advertising is far broader, for example, than statutory restrictions on commercial advertising, which condemn only untrue or misleading statements. (Bus. & Prof.Code, sec. 17500; see also Civ.Code, sec. 3369.)
A number of state court decisions have sustained similar statutes in the face of First Amendment attack. (Ex parte Hawthorne, supra, 116 Fla. 608, 156 So. 619, 96 A.L.R. 572; State v. Babst, supra, 104 Ohio St. 167, 135 N.E. 525; State v. Freeman, 143 Kan. 315, 55 P.2d 362; Commonwealth v. Acquaviva, supra, 187 Pa.Super. 550, 145 A.2d 407; Commonwealth v. Evans, supra, 156 Pa.Super. 321, 40 A.2d 137.) Several of these decisions are based on the supposition that a prohibition of anonymity has no adverse effect on free speech. All these decisions antedate Talley v. California and other federal Supreme Court cases which establish the free speech aspects of anonymity in political association and expression. Hence such decisions are no longer authoritative.
The judgment is reversed and the cause remanded to the trial court with directions to issue a peremptory writ of prohibition.
PIERCE, P.J., and SCHOTTKY, J., concur.
'Every person is guilty of a misdemeanor who writes or causes to be written, printed, posted, or distributed any circular, pamphlet, letter, or poster which is designed to injure or defeat any candidate for nomination or election to any public office by reflecting upon his personal character or political action, unless there appears upon the circular, pamphlet, letter, or poster, in a conspicuous place, the name and address of the printer and either:
'(a) The name and address of the chairman and secretary or the names and addresses of at least two officers of the political or other organization issuing it; or
'(b) The name and residence address, with the street and number, if any, of some voter of this State, who is responsible for it.'