Opinion
No. G011724
9-30-1992
Previously published at 15 Cal.App.4th 1060, 20 Cal.App.4th 1114, 25 Cal.App.4th 1527, 9 Cal.App.4th 1559 15 Cal.App.4th 1060, 20 Cal.App.4th 1114, 25 Cal.App.4th 1527, 9 Cal.App.4th 1559 Daniel GRISET et al., Plaintiffs and Appellants, v. FAIR POLITICAL PRACTICES COMMISSION, Defendant and Respondent.
Reed & Davidson and Darryl R. Wold, Costa Mesa, for plaintiffs and appellants. Scott Hallabrin, Jeevan S. Ahuja, Deanne Stone, Sacramento, and Jonathan Rothman, Berkeley, for defendant and respondent.
Daniel GRISET et al., Plaintiffs and Appellants,
v.
FAIR POLITICAL PRACTICES COMMISSION, Defendant and Respondent.
Sept. 30, 1992.
Review Granted Jan. 21, 1993.
Reed & Davidson and Darryl R. Wold, Costa Mesa, for plaintiffs and appellants.
Scott Hallabrin, Jeevan S. Ahuja, Deanne Stone, Sacramento, and Jonathan Rothman, Berkeley, for defendant and respondent. OPINION
SONENSHINE, Associate Justice.
Daniel Griset, the Griset Campaign Committee and the Santa Ana Progress Committee appeal the trial court's denial of their petition for writ of mandamus, which challenged punitive measures undertaken against them by the Fair Political Practices Commission (FPPC). An administrative law judge fined Griset and both committees, controlled by Griset, for sending mass candidate mailings without disclosing the name of the sender, in derogation of Government Code section 84305. Appellants contend the section is unconstitutional.
I
Griset was seeking election to the Santa Ana City Council at the time of the subject mailings. Prior to the administrative hearing on the appellants' failure to comply with the statute, they sought injunctive relief to ban any FPPC action. The court determined Griset and his controlled committees were not entitled to the anonymity which is constitutionally provided to noncandidate individuals and noncandidate-controlled groups: "It is clearly of compelling state interest that the public be fully informed about the political opinions of political candidates." Moreover, "Since there has been no unconstitutional inhibition upon freedom of expression to the plaintiffs in the present situation, the Court holds that Government Code section 84305 is validly imposed upon the actions of the plaintiffs even though there is a possibility that under some circumstances the statute could be unconstitutionally overbroad."
Following a hearing, the administrative law judge found the appellants had not complied with the statute. Griset and the Griset Campaign Committee were fined $2,000; he and the Santa Ana Progress Committee were fined $8,000. The FPPC adopted the decision of the administrative law judge and imposed the recommended $10,000 fine. Appellants petitioned for a writ of mandamus (seeking rescission of the decision), declaratory relief (again claiming § 84305 is unconstitutional), and injunctive relief (enjoining enforcement of the penalties). Their motions for a peremptory writ and for summary judgment were denied.
Appellants appeal the ruling and request that we find section 84305 unconstitutional, as applied and on its face.
II
Section 84305 is contained in Title 9 of the Government Code (the Political Reform Act, added by initiative measure approved by the voters June 4, 1974), chapter 4 (dealing with campaign disclosures in general), article 3 (specifically addressing prohibitions or limitations on contributions and expenditures). Other sections in article 3 require (1) the name of a donor or payee making a contribution in excess of $100 (§ 84300); (2) a contribution be made only in the legal name of a donor (§ 84301); (3) the names and addresses of both the principal and agent where contribution is by the agent (§ 84302); (4) the candidate to report any expenditure by an independent contractor (§ 84303); and (5) any contribution in excess of $100, by an anonymous donor, be paid to the state (§ 84304).
Section 84305 forbids any mass mailings "unless the name, street address, and city of the candidate or committee are shown on the outside of each piece...."
III
Appellants contend section 84305 is unconstitutional because it prevents anonymous political speech that is protected by the First Amendment. We agree appellants were engaged in political speech, regulation of which "touches the core of First Amendment protection." (Schuster v. Municipal Court (1980) 109 Cal.App.3d 887, 892, 167 Cal.Rptr. 447.) "The First Amendment exists to protect free discussion of governmental affairs [citation], for 'speech concerning public affairs is more than self-expression; it is the essence of self-government.' [Citation.] The constitutional safeguard was fashioned 'to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' [Citations.]" (Ibid.) "Since disclosure requirements undoubtedly tend to restrict the freedom to distribute and consequently deter free speech, the latter right encompasses the right to remain anonymous. [Citations.]" (Ibid.)
However, this protection, like that afforded any other activity covered by the First Amendment, is not unlimited. For this reason, Talley v. State of California (1960) 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559, upon which Schuster relies, is not the answer to the appellants' prayers. There, the Supreme Court did, indeed, strike down an ordinance forbidding the distribution of handbills unless the documents identified the author: "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression." (Id. at p. 64, 80 S.Ct. at 538.) But the court made clear it (1) was examining a "broad ordinance ... barring distribution of 'any hand-bill in any place under any circumstances' " (id. at p. 63, 80 S.Ct. at 538) and (2) was not passing "on the validity of an ordinance limited to prevent supposed evils." (Id. at p. 64, 80 S.Ct. at 538.)
The ordinance in Talley applied to anyone who wished to distribute information. Here, the statute reaches only a specified few. Talley noted that "there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified." (Id. at p. 65, 80 S.Ct. at 539.) The obvious corollary is that there are times and circumstances when they may be so compelled. Our initial issue is whether this is one of those situations.
Schuster v. Municipal Court, supra, 109 Cal.App.3d 887, 167 Cal.Rptr. 447, too, dealt with a statute which prohibited "all anonymous political campaign literature" by all persons. (Id. at pp. 890-891, 167 Cal.Rptr. 447, emphasis added.) And, again, the court recognized that the right of free speech "is not absolute." (Id. at p. 893, 167 Cal.Rptr. 447.)
We examine application of the statute to Griset and his personally-controlled campaign committees, recognizing that "[t]his title should be liberally construed to accomplish its purposes." (§ 81003.) There is a significant government interest in preserving the integrity of the electoral process, to avoid the very situation we find in our land today: Voter disenchantment, leading to a feeling of helplessness at the polls and a tendency not to vote at all. "The dual purpose of ... the Political Reform Act of 1974 is to inform the electorate and to prevent the corruption of the political process. The achievement of these objectives promotes a compelling state interest. [Citations.]" (Socialist Workers etc. Committee v. Brown (1975) 53 Cal.App.3d 879, 888-889, fn. omitted, 125 Cal.Rptr. 915.)
The state has a compelling interest in an informed electorate, in assuring that the voters are provided with information which will aid them in evaluating the candidates. This interest is surely not advanced by allowing candidates anonymous access to the voters. The candidate is, after all, the one who chose to place himself or herself in the limelight. This choice a fortiori must include self-identification when the candidate publicly voices a position. Moreover, attacks on an opponent may have their place in a contested race, but anonymous attacks by a candidate do not.
The Talley court waxed eloquent for a moment on those of our forefathers who had no choice during "the obnoxious press licensing law of England"; i.e., they were "able to criticize oppressive practices and laws either anonymously or not at all." (Talley v. State of California, supra, 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559.) Thus did the court uphold striking a total ban on unsigned handbills: "[I]dentification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance." (Id. at p. 65, 80 S.Ct. at 539.) The latter--"perfectly peaceful discussions of public matters of importance"--are supposedly what one running for office wishes to place before the voters, and precisely what we expect and are entitled to demand of our candidates for office. Distinguishing one's stand from that of an opponent is an important and proper method of informing the electorate about one's position as a candidate. It allows for open debate as well as questions from the constituents. Anonymous jabbing at an opponent does not.
In Canon v. Justice Court (1964) 61 Cal.2d 446, 39 Cal.Rptr. 228, 393 P.2d 428, appellant was charged with violation of section 12047 of the Elections Code, which made it a misdemeanor for anyone to distribute materials " 'designed to injure or defeat any candidate ... by reflecting upon his personal character or political action' " (id. at p. 449, fn. 1, 39 Cal.Rptr. 228, 393 P.2d 428) unless signed by the printer and the person responsible. Although finding the statute unconstitutionally discriminatory, the court held it did not infringe on freedom of speech. First, said the court, "The statute does not prohibit the communication of ideas, nor does it attempt to regulate the content of expression. It forbids only anonymity ... with respect to a limited range of expression...." (Id. at p. 451, 39 Cal.Rptr. 228, 393 P.2d 428.) The reasons set forth there are equally applicable to Griset and his controlled committees: "[The statute] requires identification so that (1) the electorate may be better able to evaluate campaign material by examination of the competence and credibility of its source, (2) irresponsible attacks will be deterred, (3) candidates may be better able to refute or rebut charges--so that elections will be the expression of the will of an undeceived, well-informed public. It is clear that the integrity of elections, essential to the very preservation of a free society, is a matter 'in which the State may have a compelling regulatory concern.' [Citation.]" (Id. at pp. 452-453, 39 Cal.Rptr. 228, 393 P.2d 428.) Second, requiring disclosure has "some inhibitory effect" but "does not invalidate the statute." (Id. at p. 454, 39 Cal.Rptr. 228, 393 P.2d 428.) "[A]nonymity all too often lends itself, in the context of attacks upon candidates in the preelection period, to smears, as a result of which the electorate is deceived. Identification permits confrontation and often makes refutation easier and more effective. It tends to reduce irresponsibility. It enables the public to appraise the source." (Id. at p. 459, 39 Cal.Rptr. 228, 393 P.2d 428.)
In Talley, the public would run the risk of being less informed if the limitations were allowed to stand; because the ban was "across the board," expression of unpopular views would be heavily curtailed. Here, the candidate, by entering the race, has presumably chosen to present his or her position on the issues; he or she wants the public to agree. Voters will likely be better informed with the limitations intact. We avoid political subterfuge; an office seeker cannot present one picture publicly, while anonymously pressing another in mass mailings.
We emphasize that, at this stage, we are addressing the prohibition of anonymity for a candidate in relation to his or her own campaign. "It must be remembered that the right of freedom of speech is primarily intended to protect minority views." (Huntley v. Public Util. Com. (1968) 69 Cal.2d 67, 73, 69 Cal.Rptr. 605, 442 P.2d 685.) While a candidate may assuredly be possessed of a "minority view," we just as assuredly have no state interest in protecting that view, as it relates to his or her candidacy, from examination by the voting public. Just the opposite. Whether the speech is good, bad or indifferent, the electorate is entitled to know the thinking of those who seek to govern. Accountability is one of the keystones of the Political Reform Act and properly so. Section 84305, as applied to Griset and his controlled committees, promotes the state's compelling interest in an informed electorate.
IV
Overbreadth
Appellants contend that, even if the statute is constitutional as applied to them, it is unconstitutionally overbroad on two levels. First, they point to the persons and groups covered by the section--"no candidate or committee"--which attaches impermissibly to persons (other than Griset and his personal campaign committees) whose speech may not be regulated. Two courts below, both before and after the challenged administrative action, recognized the possible overbreadth of the statute, in the event it should be applied to other than a candidate or a committee controlled by him or her. "Committee" would cover even one person, unassociated with a particular candidate, who expended $1,000 for political purposes.
Respondent contends the above concerns are irrelevant, based on the general rule "that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. [Citations.]" (Broadrick v. Oklahoma (1973) 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830.) However, an exception has been carved out in the area of the First Amendment. "[T]he Court has altered its traditional rules of standing to permit--in the First Amendment area--'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' [Citation.]" (Ed. at p. 612, 93 S.Ct. 2908).
As a consequence, "any enforcement of a statute thus placed at issue is totally forbidden until and unless a limited construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute." (Id. at p. 613, 93 S.Ct. at 2916.)
Here, we employ just such a "limited construction or partial invalidation" for section 84305 to insure the narrow application of the section upheld in Part III, ante, and to avoid a declaration of unconstitutionality based on overbreadth. "Committee," in relation to other sections of Title 9, includes individuals, independent committees, and state measure proponent controlled committees (which cannot be forced to sacrifice their anonymity in order to air their views) as well as candidates and candidate controlled committees (which can). However, as to section 84305 only, "committee" must be interpreted to mean only the latter, a "candidate controlled committee"; therefore, only candidates and candidate controlled committees remain subject to the section. Such an interpretation conforms with the dictates of Broadrick v. Oklahoma, supra, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830.
Moreover, the Political Reform Act is to "be vigorously enforced" (§ 81002, subd. (f)), "should be liberally construed to accomplish its purposes" (§ 81003), and has a severability clause (§ 81015), which " 'normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable.' " (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821, 258 Cal.Rptr. 161, 771 P.2d 1247.)
Limiting the definition of "committee" within section 84305 to "candidate controlled committee" essentially invalidates inclusion of the other entities listed in the general definition, but only as to section 84305. The general definition remains applicable to all other sections of Title 9. And we note that, although Title 9 was the result of an initiative passed by the state electorate, that portion of section 84305 which we address today was not a part of the original measure, but was added by the Legislature. Section 84305 initially had no identification requirements.
" 'The final determination [of severability] depends upon whether the remainder ... is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute ... or constitutes a completely operative expression of the legislative intent ... [and is not] so connected with the rest of the statute as to be inseparable.' [Citations.]" (Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d 805, 821, 258 Cal.Rptr. 161, 771 P.2d 1247.)
"The cases prescribe three criteria for severability: the invalid provision must be grammatically, functionally, and volitionally separable." (Ibid.) The components of the word "committee" are mechanically and grammatically severable; their removal does not affect other provisions. (Id. at p. 822, 258 Cal.Rptr. 161, 771 P.2d 1247.) The major concern, candidate-dominated committees, remains subject to the statute; it is functionally separable, in that it is "capable of independent application." (People's Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 331, 226 Cal.Rptr. 640.) And the remaining portions of section 84305 "would likely have been adopted by the [Legislature] had [it] foreseen the invalidity" of including those excised entities coming under the definition of the generalized term "committee." (Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d 805, 822, 258 Cal.Rptr. 161, 771 P.2d 1247.) "There is no persuasive reason to suppose the [latter group] was so critical to the enactment of [section 84305] that the measure would not have been enacted in its absence." (Ibid.) And there remains the obvious: the Legislature has the power to repeal section 84305 in its entirety if it deems that action necessary.
Appellants argue that the requirement of sender identification on all mass mailings regardless of content is a further example of unconstitutional overbreadth. We disagree. Identification is necessary only for candidates and their controlled committees. A candidate voluntarily casts aside political anonymity when the decision to seek office is made. Because he or she aspires to govern, or in some manner make binding decisions for, the electorate, that voting constituency is entitled to know what that candidate stands for and why. For all the reasons proffered in Part III, ante, the "mass mailing" terminology is not unconstitutionally overbroad in the context of section 83405 as presently interpreted.
We conclude Government Code section 84305 is constitutional as applied to Griset and his controlled committees. Its potential overbreadth is cured by the interpretation outlined above: Section 84305 applies only to candidates and candidate controlled committees.
Judgment affirmed. Parties to bear their own costs on appeal.
MOORE, Acting P.J., concurs.
WALLIN, Associate Justice, dissenting.
In a virtually unparalleled feat of appellate legerdemain the majority manages to uphold a punitive fine of $10,000 imposed on a city council candidate for exercising his constitutional right to promote himself and criticize his election opponent. The candidate's "offense" is that he and his controlled committees sent political mailers to potential voters without including the name of the sender as required by an unconstitutional statute, though any reader can see the mailers were from his side. With remarkable Alice in Wonderland logic, the majority "supports" its conclusion by citing four cases--one from the United States Supreme Court, two from the California Supreme Court and one from the Court of Appeal--all of which concluded that statutory restrictions on anonymous handbills or pamphlets violated the First Amendment and were unconstitutional. Furthermore, the majority simply ignores well-reasoned decisions from several state supreme courts and a three-judge federal district court (declaring a New York statute unconstitutional) holding statutes similar to Government Code section 84305 unconstitutional. Because this opinion, if it survives, will have an extremely significant effect on the exercise of First Amendment rights in state and local election campaigns now underway, it is important to discuss the facts of this case.
To begin, political campaigns in southern California must be conducted primarily by mail. Candidates for Congress, and county and municipal offices cannot afford electronic media advertising and newspaper advertising is both expensive and ineffective. The electronic and print media focus almost exclusively on national and statewide races so there is very little free publicity. A less expensive tactic, the time-honored practice of walking door-to-door, has severe limitations. Even the most diligent campaigner can only meet a small number of voters because he or she must be careful to avoid interrupting dinner, Monday night football or a favorite sitcom. All walking must stop as darkness begins to fall. No one likes strangers who appear at the door after that time and, sad to say, the streets in many areas are not safe for a lonely candidate. During the day most local candidates, and the voters they wish to meet, are employed away from home.
Candidates are also handicapped by low budgets and restrictive campaign finance laws which limit their ability to deliver their message. They are forced to resort to relatively inexpensive third-class or "junk" mail to reach a large number of voters. Even then the political message must compete with a paper blizzard of advertising circulars from neighborhood supermarkets, hardware stores, realtors, insurance agents, doctors, dentists, and other merchants. Most recipients quickly cast the daily pile into the wastebasket. As a result effective campaign mailers must be strident and even outrageous as they attempt to catch the reader's eye. Bold colors, large type and shocking headlines are the rule rather than the exception. The tabloids at the supermarket checkout counter--and political mailers--would not be nearly as successful if they concentrated on intellectual discussions of economic theory and the effect of the balance of payments on the value of the dollar.
Griset's mailers are not nearly as offensive as many other circulars employed in elections in Orange County in recent years. Orange County's experience is not unique and our nation has a long tradition of rough and tumble electioneering. Political office is not for the faint-hearted.
As Presiding Justice Gardner wrote in Desert Sun Publishing Co. v. Superior Court (1979) 97 Cal.App.3d 49, 51-52, 158 Cal.Rptr. 519, "In New York Times v. Sullivan [1964] 376 U.S. 254 at page 270 [84 S.Ct. 710, 720, 11 L.Ed.2d 686], the Supreme Court observed that this country has 'a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' [p] This 'profound national commitment' encompasses the constitutionally protected right not only to make responsible, but also to make irresponsible charges against those in or seeking public office. It is an essential part of our national heritage that an irresponsible slob can stand on a street corner and, with impunity, heap invective on all of us in public office. At such times the line between liberty and license blurs. However, our dedication to basic principles of liberty and freedom of expression will tolerate nothing less. The alternative is censorship and tyranny. [p] Our political history reeks of unfair, intemperate, scurrilous and irresponsible charges against those in or seeking public office. Washington was called a murderer, Jefferson a blackguard, a knave and insane (Mad Tom), Henry Clay a pimp, Andrew Jackson a murderer and an adulterer, and Andrew Johnson and Ulysses Grant drunkards. Lincoln was called a half-witted usurper, a baboon, a gorilla, a ghoul. Theodore Roosevelt was castigated as a traitor to his class, and Franklin Delano Roosevelt as a traitor to his country. Dwight D. Eisenhower was charged with being a conscious agent of the Communist Conspiracy. [p] Perhaps the low point in irresponsible political vilification occurred in the Cleveland-Blaine contest where an entire presidential campaign was waged on two deathless bits of doggerel based on allegations that Mr. Blaine was dishonest, and Mr. Cleveland had sired an illegitimate child--'Blaine, Blaine, James G. Blaine, the continental liar from the State of Maine,' versus 'Ma, Ma, where's my Pa? Gone to the White House. Ha! Ha! Ha!' [p] Obviously, no rational person can approve any of the above. We merely note them as an unpleasant fact of our political background--a history of rough, crude, brawling, mudslinging, muck-raking, name-calling attacks upon those in or seeking political office. In America, one who seeks or holds public office may not be thin of skin. One planning to engage in politics, American style, should remember the words credited to Harry S. Truman--'If you can't stand the heat, get out of the kitchen.' "
According to a nationally syndicated column, Lincoln's famous opponent, Stephen A. Douglas, called him, "Ape ... monster...." and "a rawboned, shamble-gaited, bow-legged, knock-kneed, pigeon-toed, slob-sided, shapeless skeleton in a very tough, unwholesome skin." The president of Yale University once charged that Thomas "Jefferson's reelection 'would make our wives and daughters the victims of legalized prostitution.' " (Anderson & Binstein, Washington Merry-Go-Round, Metropolitan News-Enterprise (Sept. 14, 1992) p. 8.)
Against this backdrop the mailers under consideration here, which effusively praise Griset and harshly criticize his opponent are relatively tame. They primarily charge Griset's opponent with operating swap meets in the city leading to traffic problems and disputes over business licenses, parking and the cost to the city of extra police security. In one case the charges were made in a reproduced two-page letter to the president of the Santa Ana Police Benevolent Association signed by the officers and 12 board members of a neighborhood association. This and other mailers also claimed Griset's opponent had only recently moved into the city, did not vote in prior elections, was being sued by the city, and had been sued for fraud. One mailer praised Griset as a Santa Ana native and businessman, regular voter and law-abiding citizen. Any reader can see that the mailings come from Griset's campaign, even though they are not specifically identified in the manner required by Government Code section 84305. None of them are libelous. Nevertheless, the majority concludes Griset's controlled committees, and Griset personally, must pay $10,000 to the Fair Political Practices Commission, an agency of the state, for sending them.
Such fines are a chilling prospect and will no doubt discourage many citizens from risking the hazards of an election campaign. How does the majority justify this intrusion into the political process? Amazingly, it decides that "attacks on an opponent may have their place in a contested race, but anonymous attacks by a candidate do not." (Maj. p. 251.) The majority further states, "Distinguishing one's stand from that of an opponent is an important and proper method of informing the electorate about one's position as a candidate. It allows for open debate as well as questions from constituents. Anonymous jabbing at an opponent does not." (Ibid.) "Voters will likely be better informed with the limitations intact. We avoid political subterfuge; an office seeker cannot present one picture publicly, while anonymously pressing another in mass mailings." (Maj. p. 252.) The majority fails to note that Government Code section 84305 is not limited to campaign attacks on an opponent. It applies to all political mailings, including those praising a candidate.
While the majority's comments are well meaning, nothing in the First Amendment or the case law suggests that any jurist or jurists have either the knowledge or the power to determine the best way to conduct political campaigns or inform the electorate. Candidates routinely orchestrate attacks on opponents through surrogates, leaks to friendly or gullible reporters and "not for attribution" criticisms. The same candidates then "take the high road" by denying responsibility. It happens all the time and all voters know it. Here Griset never denied responsibility but is nevertheless being fined for one mailer bearing the signatures of 14 Santa Ana residents and other mailers obviously sponsored by his campaign.
Four cases are cited to support the majority's conclusion that fining Griset for not more specifically identifying his campaign mail is constitutional. All of them held the particular statute or statutory application under consideration was unconstitutional.
In Talley v. California (1960) 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559, the only pronouncement from our nation's highest court on this issue, the court struck down a Los Angeles City ordinance requiring identification on all handbills. Talley was convicted of circulating handbills urging a boycott of businesses accused of denying equal employment opportunities to minorities. After declaring that regulations designed to limit obscenity and narrowly drawn ordinances designed to protect against fraud are proper, the Supreme Court issued a ringing declaration of the importance of the right to anonymity in political matters, explaining: "There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.... [p] Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes." (Id. 362 U.S. at pp. 64-65, 80 S.Ct. at pp. 538-539, fns. omitted.)
Incredibly, despite the Supreme Court's plain pronouncement that anonymity is protected by, and essential to, the First Amendment, the majority uses Talley to support its conclusion anonymity is not protected.
Next the majority relies on Canon v. Justice Court (1961) 61 Cal.2d 446, 39 Cal.Rptr. 228, 393 P.2d 428, which reversed a conviction for violating a similar, now repealed statute. The suggestion that the statute could be narrowly construed and therefore be constitutional was unanimously rejected. (Id. at pp. 460-461, 39 Cal.Rptr. 228, 393 P.2d 428.) Nevertheless, the majority here purports to save Government Code section 84305 by rewriting it to apply only to candidates and their controlled committees. Huntley v. Public Utilities Commission (1968) 69 Cal.2d 67, 69 Cal.Rptr. 605, 442 P.2d 685, also cited by the majority, held a requirement that recorded telephone messages contain the name and address of the sender violated the First Amendment.
Finally, the majority relies on Schuster v. Municipal Court (1980) 109 Cal.App.3d 887, 167 Cal.Rptr. 447, the most recent California case to extensively consider the issue of the right to anonymity in election campaigns. There the court held former Elections Code section 29410, the predecessor to the statute before us, was unconstitutional under the First Amendment. Section 29410 compelled "disclosure on the face of any writing 'having reference to an election, or any candidate, or to any measure' of the name and address of the individual 'responsible for it....' [and prohibited] exempting only support statements such as 'Yes on,' 'Vote for' or ... all anonymous literature which sets forth any arguments, information or ideas in support or in opposition to candidates for ballot measures." (Id. at p. 891, 167 Cal.Rptr. 447.)
Schuster is virtually identical to this case and yet is given only slight mention by the majority. Elections Code section 29410 was defended asnecessary to the election process for the same reasons used by the majority to uphold Government Code section 84305 and those reasons were specifically rejected in the Schuster opinion. "The Legislature here, in attempting to promote this governmental interest, declared: '(a) That a need exists for adequate identification of the source of campaign appeals directed at the voters in order to assist them in making rational decisions at the polls. [p] (b) That by requiring such identification of campaign literature, the public is better able to evaluate the source of campaign material, may be more adequately informed, and can better distinguish between truth and falsity. [p] (c) That by requiring identification, anonymous attacks, which cannot adequately be responded to in the heat of a campaign, will be discouraged. [p] (d) That by requiring identification, a candidate who believes he has been libeled may more readily seek redress in a civil action for damages. [p] (e) That limiting identification requirements to pejorative campaign material is inadequate because subtle attacks on candidates or measures can be framed which appear to be supportive but, in fact, are pejorative....' (Stats.1977, ch. 976, § 1, p. 2948.) [p] However, these legislative findings cannot sustain the sweeping impact of the regulation on protected speech. [p] Regarding source disclosure in order to assist the electorate in making rational decisions at the polls, this interest, although laudable, cannot justify in and of itself a blanket prohibition of all anonymous campaign literature. 'Of course, the identity of the source is helpful in evaluating ideas. But "the best test of truth is the power of the thought to get itself accepted in the competition of the market" (citation). Don't underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is "responsible", what is valuable, and what is truth.' [Citation.]" (Id. at pp. 896-897, 167 Cal.Rptr. 447.)
After pointing out that Elections Code section 29410 punished anonymous circulation of political literature even if it praised an opponent, Schuster recognized that its conclusion was "not singular or unique. Courts of other jurisdictions confronted with the identical issue have reached the same conclusion that a legislative prohibition of all anonymous campaign literature is unconstitutionally overbroad. (See People v. Duryea [ (1974) ] 351 N.Y.S.2d 978; State v. North Dakota Ed. Ass'n (N.D.1978) 262 N.W.2d 731; State v. Fulton [ (La.1976) ] 337 So.2d 866; Commonwealth v. Dennis (1975) 368 Mass. 92 .) The holdings of these cases as well as ours should not be startling. We continue as a country of laws and not of persons because of the premise firmly embedded in our state and federal Constitutions that to stifle discussion is to menace the basic structure of our government. Section 29410 is unconstitutional because it encroaches upon this fundamental freedom." (Id. at p. 899, fn. omitted, 167 Cal.Rptr. 447.)
Since Schuster, Louisiana has reaffirmed State v. Fulton (La.1976) 337 So.2d 866 in State v. Burgess (La.1989) 543 So.2d 1332. A three-judge federal court held a similar New York statute unconstitutional in Zwickler v. Koota (E.D.N.Y.1968) 290 F.Supp. 244. Finally, the Illinois Supreme Court has joined the chorus of those willing to defend the First Amendment on these identical facts. (People v. White (1987) 116 Ill.2d 171, 107 Ill.Dec. 229, 506 N.E.2d 1284).
The majority urges the disclosure requirement of section 84305 is essential to an informed electorate since the message cannot be properly evaluated unless the identity of the speaker is known, especially where the speaker is a candidate for public office. However, a brief review of the statute's history reveals it was enacted for an entirely different purpose.
Government Code section 84305 was enacted June 4, 1974 through the ballot initiative process as a part of Title 9, the Political Reform Act. A cursory review of the California Voter's Pamphlet describing the Act reveals two major purposes; the first, to minimize the influence of private campaign contributions on elected officials; the second to minimize the advantage enjoyed by incumbents. Article 3, of which Government Code section 84305 is a part, deals exclusively with contributions and expenditures. It defines contribution limits, reporting requirements, and prohibitions.
As originally enacted, Government Code section 84305 prohibited expenditures for postage for mass mailings unless paid for by meter for first- or third-class permit. The meter or permit number was required to be identified in disclosure statements filed to reveal sources and amounts of campaign contributions and expenditures. Through records kept by the post office in the city of origin, the meter and permit number provided a way to identify the holder of the meter or permit and the dollar amount spent for postage. Thus, Government Code section 84305 was enacted to prevent undeclared contributions in the form of postage. It has been amended six times beginning in 1975 during which process the meter and permit number requirements were removed. This process eviscerated the code as to its original purpose since the amounts paid for postage could not be determined with certainty after the 1975 amendment.
A parallel development was the enactment by the Legislature in 1977 of what became Elections Code section 29410, which punished as a misdemeanor the preparation and reproduction by all persons of all written material relating to elections, candidates, or ballot measures unless the name and address of the responsible party was printed on it. Amended in 1978, narrowing the field of guilty parties to those who reproduced and distributed such material, Elections Code section 29410 was later found to violate the First Amendment. (Schuster v. Municipal Court, supra, 109 Cal.App.3d 887, 167 Cal.Rptr. 447.) The constitutionally offensive language was removed by amendment from Elections Code section 29410 in 1983, and replaced with a requirement that all candidates be provided with a copy of section 84305 of the Government Code.
Thus through legislative and judicial alchemy, a statute originally applying to all persons, enacted to disclose campaign contributions in the form of postage, has now been transformed by the majority into one barring the anonymous mailing of campaign literature by a candidate.
Obviously, of crucial importance to the First Amendment is the right to freedom of speech in political campaigns. Our nation's highest court and state supreme courts across the land have recognized that this protection includes the right to circulate anonymous literature concerning political candidates.
While paying lip service to the First Amendment, the majority narrows Government Code section 84305 so that it can only be applied to political candidates, the one group against whom its application is the most offensive. Today's decision may not have cut the heart out of the First Amendment, but it has surely been left bleeding. --------------- 1 The five mailings represented one batch of 300 and four of 29,000. 2 All statutory references are to the Government Code unless otherwise specified. Section 84305 provides: "(a) Except as provided in subdivision (b), no candidate or committee shall send a mass mailing unless the name, street address, and city of the candidate or committee are shown on the outside of each piece of mail in the mass mailing and on at least one of the inserts included within each piece of the mail of the mailing in no less than 6-point type which shall be in a color or print which contrasts with the background so as to be easily legible. A post office box may be stated in lieu of a street address if the organization's address is a matter of public record with the Secretary of State. "(b) If the sender of the mass mailing is a single candidate or committee, the name, street address, and city of the candidate or committee need only be shown on the outside of each piece of mail. "(c) If the sender of a mass mailing is a controlled committee, the name of the person controlling the committee shall be included in addition to the information required by subdivision (a)." 3 The FPPC offered below a second argument in support of the state's interest--providing an "audit trail." Because Title 9 addresses identification of contributions received and expenditures, as well as contributors, it contended the costs involved in sending the mailers were then easily traced to a particular candidate. We mention, but do not stress, this point. 4 There is no question of limiting the candidate's communication of ideas and no censorship of any kind as to the content of his or her political expressions. 5 " 'Committee' means any person or combination of persons who directly or indirectly does any of the following: [p] (a) Receives contributions totaling one thousand dollars ($1,000) or more in a calendar year. [p] (b) Makes independent expenditures totaling one thousand dollars ($1,000) or more in a calendar year; or [p] (c) Makes contributions totaling ten thousand dollars ($10,000) or more in a calendar year to or at the behest of candidates or committees. [p] A person or combination of persons that becomes a committee shall retain its status as a committee until such time as that status is terminated pursuant to Section 84214." (§ 82013.) " 'Controlled committee' means a committee which is controlled directly or indirectly by a candidate or state measure proponent or which acts jointly with a candidate, controlled committee or state measure proponent in connection with the making of expenditures. A candidate or state measure proponent controls a committee if he, his agent or any other committee he controls has a significant influence on the actions or decisions of the committee." (§ 82016.) 6 Section 81015 provides: "If any provision of this title, or the application of any such provision to any person or circumstances, shall be held invalid, the remainder of this title to the extent it can be given effect, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, and to this end the provisions of this title are severable." (Emphasis added.) 7 We cannot conceive of a compelling reason for a candidate needing anonymity in a political mass mailing, paid for by his or her own zealously garnered campaign funds. 1 "We must not forget the infamous alien and sedition laws of 1798 under which a semiliterate Revolutionary veteran named David Brown, who had criticized the Federalists as tyrants seeking to enslave the people, was kept in jail for two years, being unable to pay a fine of $400 and costs." 2 "All of which prompted George W. Curtis of civil service reform fame to observe, 'We are told that Mr. Blaine has been delinquent in office but blameless in private life whereas Mr. Cleveland has been a model of official integrity, but culpable in his personal relations. We should therefore elect Mr. Cleveland to the public office which he is so well qualified to fill and remand Mr. Blaine to the private status which he is admirably fitted to adorn.' " 3 The majority correctly rejects the FPPC's argument that the identification requirement on political mailings is necessary to provide an "audit trail" for campaign expenditure reporting. (Maj. at p. 251, fn. 3.) Of course, as originally enacted, an audit trail appears to have been a primary reason for the identification requirement. Not even the majority suggests we should sacrifice political speech rights to make life easier for government accountants. In any event there is no suggestion that Griset and his controlled committees failed to accurately report contributions and expenditures. 4 The 1974 version of § 84305 read: "No person shall make an expenditure for the purpose of sending a mass mailing unless the postage is paid by postage meter or the mail is sent by first class or third class bulk rate. The bulk rate number or meter number shall be stated in a campaign statement, and a copy of every mass mailing in support of or in opposition to a state candidate or state measure shall be sent to the Commission. Such copies sent to the Commission shall be public records." 5 Amendments by the assembly in 1975 allowed the sender's name and address as an alternative to meter and permit number; in 1976, a post office box designation was allowed in stead of street address and a cross reference to Election Code § 11707 was added, excluding mass mailings in compliance with § 84305 from compliance with § 11707; in 1977, the cross reference to the Election Code was renumbered to § 29410; in 1978, permit, meter number, and filing requirements were deleted; in 1984, the reference to Election Code § 29410, which had been ruled unconstitutional, was removed. The most recent amendment in 1989 required that name and address be printed in contrasting ink.