Talley v. California/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

362 U.S. 60

Talley  v.  California

 Argued: Jan. 13, 14, 1960. --- Decided: March 7, 1960

Mr. Justice HARLAN, concurring.

In judging the validity of municipal action affecting rights of speech or association protected against invasion by the Fourteenth Amendment, I do not believe that we can escape, as Mr. Justice Roberts said in Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155, 'the delicate and difficult task' of weighing 'the circumstances' and appraising 'the substantiality of the reasons advanced in support of the regulation of the free enjoyment of' speech. More recently we have said that state action impinging on free speech and association will not be sustained unless the governmental interest asserted to support such impingement is compelling. See N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 463, 464, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488; Sweezy v. State of New Hampshire, 354 U.S. 234, 265, 77 S.Ct. 1203, 1219, 1 L.Ed.2d 1311 (concurring opinion); see also Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412.

Here the State says that this ordinance is aimed at the prevention of 'fraud, deceit, false advertising, negligent use of words, obscenity, and libel,' in that it will aid in the detection of those responsible for spreading material of that character. But the ordinance is not so limited, and I think it will not do for the State simply to say that the circulation of all anonymous handbills must be suppressed in order to identify the distributors of those that may be of an obnoxious character. In the absence of a more substantial showing as to Los Angeles' actual experience with the distribution of obnoxious handbills, such a generality is for me too remote to furnish a constitutionally acceptable justification for the deterrent effect on free speech which this all-embracing ordinance is likely to have.

On these grounds I concur in the judgment of the Court.

Mr. Justice CLARK, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting.

To me, Los Angeles' ordinance cannot be read as being void on its face. Certainly a fair reading of it does not permit a conclusion that it prohibits the distribution of handbills 'of any kind at any time, at any place, and in any manner,' Lovell v. City of Griffin, 1938, 303 U.S. 444, 451, 58 S.Ct. 666, 669, 82 L.Ed. 949, as the Court seems to conclude. In Griffin, the ordinance completely prohibited the unlicensed distribution of any handbills. As I read it, the ordinance here merely prohibits the distribution of a handbill which does not carry the identification of the name of the person who 'printed, wrote, compiled * * * manufactured (or) * * * caused' the distribution of it. There could well be a compelling reason for such a requirement. The Court implies as much when it observes that Los Angeles has not 'referred to any legislative history indicating' that the ordinance was adopted for the purpose of preventing 'fraud, false advertising and libel.' But even as to its legislative background there is pertinent material which the Court overlooks. At oral argument, the City's chief law enforcement officer stated that the ordinance was originally suggested in 1931 by the Los Angeles Chamber of Commerce in a complaint to the City Council urging it to 'do something about these handbills and advertising matters which were false and misleading.' Upon inquiry by the Council, he said, the matter was referred to his office, and the Council was advised that such an ordinance as the present one would be valid. He further stated that this ordinance, relating to the original inquiry of the Chamber of Commerce, was thereafter drafted and submitted to the Council. It was adopted in 1932. In the face of this and the presumption of validity that the ordinance enjoys, the Court nevertheless strikes it down, stating that it 'falls precisely under the ban of our prior cases.' This cannot follow, for in each of the three cases cited, the ordinances either 'forbade any distribution of literature * * * without a license,' Lovell v. City of Griffin, supra, or forbade, without exception, any distribution of handbills on the streets, Jamison v. State of Texas, 1943, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869; or, as in Schneider v. State of New Jersey, 1939, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155, which covered different ordinances in four cities, they were either outright bans or prior restraints upon the distribution of handbills. I, therefore, cannot see how the Court can conclude that the Los Angeles ordinance here 'falls precisely' under any of these cases. On the contrary, to my mind, they neither control this case nor are apposite to it. In fact, in Schneider, depended upon by the Court, it was held, through Mr. Justice Roberts, that, 'In every case * * * where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation * * * weigh the circumstances and * * * appraise the substantiality of the reasons advanced * * *.' Id., 308 U.S. at page 161, 60 S.Ct. at page 151. The Court here, however, makes no appraisal of the circumstances, or the substantiality of the claims of the litigants, but strikes down the ordinance as being 'void on its face.' I cannot be a party to using such a device as an escape from the requirements of our cases, the latest of which was handed down only last month. Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412. ^[1]

Therefore, before passing upon the validity of the ordinance, I would weigh the interests of the public in its enforcement against the claimed right of Talley. The record is barren of any claim, much less proof, that he will suffer any injury whatever by identifying the handbill with his name. Unlike N.A.A.C.P. v. State of Alabama, 1958, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, which is relied upon, there is neither allegation nor proof that Talley or any group sponsoring him would suffer 'economic reprisal, loss of employment, threat of physical coercion (or) other manifestations of public hostility.' Id. 357 U.S. at page 462, 78 S.Ct. at page 1172. Talley makes no showing whatever to support his contention that a restraint upon his freedom of speech will result from the enforcement of the ordinance. The existence of such a restraint is necessary before we can strike the ordinance down.

But even if the State had this burden, which it does not, the substantiality of Los Angeles' interest in the enforcement of the ordinance sustains its validity. Its chief law enforcement officer says that the enforcement of the ordinance prevents 'fraud, deceit, false advertising, negligent use of words, obscenity, and libel,' and, as we have said, that such was its purpose. In the absence of any showing to the contrary by Talley, this appears to me entirely sufficient.

I stand second to none in supporting Talley's right of free speech-but not his freedom of anonymith. The Constitution say nothing about freedom of anonymous speech. In fact, this Court has approved laws requiring no less than Los Angeles' ordinance. I submit that they control this case and require its approval under the attack made here. First, Lewis Publishing Co. v. Morgan, 1913, 229 U.S. 288, 33 S.Ct. 867, 57 L.Ed. 1190, upheld an Act of Congress requiring any newspaper using the second-class mails to publish the names of its editor, publisher, owner, and stockholders. 39 U.S.C. § 233, 39 U.S.C.A. § 233. Second, in the Federal Regulation of Lobbying Act, 2 U.S.C. § 267, 2 U.S.C.A. § 267, Congress requires those engaged in lobbying to divulge their identities and give 'a modicum of information' to Congress. United States v. Harriss, 1954, 347 U.S. 612, 625, 74 S.Ct. 808, 816, 98 L.Ed. 989. Third, the several States have corrupt practices acts outlawing, inter alia, the distribution of anonymous publications with reference to political candidates. ^[2] While these statutes are leveled at political campaign and election practices, the underlying ground sustaining their validity applies with equal force here.

No civil right has a greater claim to constitutional protection or calls for more rigorous safeguarding than voting rights. In this area the danger of coercion and reprisals-economic and otherwise-is a matter of common knowledge. Yet these statutes, disallowing anonymity in promoting one's views in election campaigns, have expressed the overwhelming public policy of the Nation. Nevertheless the Court is silent about this impressive authority relevant to the disposition of this case.

All three of the types of statutes mentioned are designed to prevent the same abuses-libel, slander, false accusations, etc. The fact that some of these statutes are aimed at elections, lobbying, and the mails makes their restraint no more palatable, nor the abuses they prevent less deleterious to the public interest, than the present ordinance.

All that Los Angeles requires is that one who exercises his right of free speech through writing or distributing handbills identify himself just as does one who speaks from the platform. The ordinance makes for the responsibility in writing that is present in public utterance. When and if the application of such an ordinance in a given case encroaches on First Amendment freedoms, then will be soom enough to strike that application down. But no such restraint has been shown here. After all, the public has some rights against which the enforcement of freedom of speech would be 'harsh and arbitrary in itself.' Kovacs v. Cooper, 1949, 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513. We have upheld complete proscription of uninvited door-to-door canvassing as an invasion of privacy. Breard v. City of Alexandria, 1951, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233. Is this less restrictive than complete freedom of distribution-regardless of content-of a signed handbill? And commercial handbills may be declared verboten, Valentine v. Chrestensen, 1942, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, regardless of content or identification. Is Talley's anonymous handbill, designed to destroy the business of a commercial establishment, passed out at its very front door, and attacking its then lawful commercial practices, more comportable with First Amendment freedoms? I think not. Before we may expect international responsibility among nations, might not it be well to require individual responsibility at home.? Los Angeles' ordinance does no more.

Contrary to petitioner's contention, the ordinance as applied does not arbitrarily deprive him of equal protection of the law. He complains that handbills are singled out, while other printed media-books, magazines, and newspapers-remain unrestrained. However, '(t)he problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. * * * Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. * * * The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. (I) cannot say that that point has been reached here.' Williamson v. Lee Optical, 1955, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563.

I dissent.

Notes

1. 'When it is shown that state action threatens significantly to impinge upon constitutionally protected freedom it becomes the duty of this Court to determine whether the action bears a reasonable relationship to the achievement of the government purpose asserted as its justification.' 361 U.S. at page 525, 80 S.Ct. at page 417.
2. Thirty-six States have statutes prohibiting the anonymous distribution of materials relating to elections. E.g.: Kan.G.S.1949, § 25-1714; M.S.A. § 211.08; Page's Ohio R.C. § 3599.09; Purdon's Pa.Stat.Ann., Title 25, § 3546.