Danskin v. San Diego Unified School District

SPENCE, J.

I dissent. The respondent board has granted to petitioners permission to use a school auditorium, subject only to the condition that they subscribe to and file with the board affidavits containing the following declaration: “I do not advocate and I am not affiliated with any organization which advocates or has as its object or one of its objects the overthrow of the present Government of the United States or of any State by force or violence, or other unlawful means.” *558 Petitioners refuse to file such affidavits and they seek a writ of mandate to compel the respondent board to grant such permission unconditionally, claiming that the condition imposed is violative of their constitutional rights.

Section 19432 of the Education Code, as amended in 1945 (Stats. 1945, chap. 1213), is set forth in the majority opinion and need not be repeated here.

It is but one section of the Civic Center Act, which was reframed and reenacted in 1943 (Stats. 1943, pp. 690-692, Ed. Code, §§ 19431-19439), which act constituted a grant of power to the governing boards of school districts to permit the use of school buildings, subject to the limitation or exception contained in section 19432. It is conceded in the majority opinion that “If the section is valid, it is clear that the board acted reasonably when it provided for affidavits in its rules in conformity with the legislative amendment.” The conclusion reached in the majority opinion is that the provisions of section 19432 are unconstitutional and void, that petitioners may not be required to file the affidavits, and that petitioners are therefore entitled to the issuance of the writ. With these conclusions I cannot agree.

While the Supreme Court of the United States has jealously guarded civil liberties, there is no decision of that court or of any other court which compels the conclusion that the provisions of section 19432 of the Education Code are unconstitutional and void. Here the question presented is not whether particular acts or utterances may be punished under a criminal statute without infringing upon the provisions of the First or Fourteenth Amendment of the Constitution of the United States; or whether a public official may be granted arbitrary power to grant or deny a permit to persons who desire to assemble and speak in a public place which is open generally to members of the public at all times. We have here the simple question of whether the Legislature may provide that those who seek permission to use as meeting places our public schools, which are erected and maintained by our government primarily for educational purposes and are not open generally to the public at all times or for all purposes, may be required to take an oath, as a condition to the enjoyment of such use, that they do not advocate and are not affiliated with any organization which advocates the overthrow of that government by force or violence or other unlawful means. Section 19432 authorizes the respondent board to require such *559 oath and in my opinion it authorizes nothing which is unreasonable or which violates any of the constitutional rights of those who seek permission for such use. It is worthy of note that only a few months ago this court assumed the constitutionality of the same provisions of section 19432 of the Education Code which are now challenged, when it said in Payroll Guaranty Assn. v. Board of Education, 27 Cal.2d 197 [ 163 P.2d 433 , 161 A.L.R 1300], at page 200: “The respondent board may not only make reasonable regulations with regard to the use of the school auditorium for authorized purposes but may deny an application for its use if (1) such use would further, directly or indirectly, the overthrow of the present government of the United States or any State, Territory or Possession thereof, by force or violence or other unlawful means, . . . .”

Reference has been made in the briefs and in the majority opinion to the so-called “clear and present danger” rule. While that rule finds expression in certain majority opinions in the decisions of the United States Supreme Court, as well as in certain concurring and dissenting opinions, it has yet to be defined in such manner as to permit any degree of certainty in its application. In the concurring opinion of Mr. Justice Brandeis in Whitney v. California, 274 U.S. 357, 374 [ 47 S.Ct. 641 , 71 L.Ed. 1095 ], he said: “This court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present.” In the majority opinion in a very recent decision of the United States Supreme Court, handed down on June 3, 1946, (Pennekamp v. Florida, - U.S. - [ 66 S.Ct. 1029 , 90 L.Ed. -], October Term, 1945), it is frankly said: “No definition could give an answer” and that the rule still has the “vice of uncertainty.” In any event, no decision of the United States Supreme Court has been called to our attention in which the “clear and present danger” rule has been applied to a situation similar to that presented here, and in my opinion it has no application.

It seems clear that our goverment is not required to maintain its public buildings for the use as meeting places of those who advocate its overthrow by force and violence. I believe that the limitation or exception found in the statute might have been made broader, if the Legislature had seen fit, and that the Legislature might have withheld power from the governing boards of school districts to permit the use of *560 the school buildings by those who advocate other serious crimes. There could be no valid constitutional objection to a limitation or exception denying the use of our school buildings to those who advocate lynching or who advocate the assassination of the President of the United States or who advocate other crimes of violence against persons; and for similar reasons, there can be no valid objection to denying the use of such buildings to those who advocate the overthrow of the government by force and violence. It is impossible to divorce crime from its criminal aspects even though it may be committed for a purpose having a political tinge; and the advocacy of crime does not become sacrosanct merely because of the nature of the motives or purposes of its advocates. When those advocating the overthrow of our government by force and violence seek the use of our school buildings as meeting places, consideration of the safety of our educational facilities would appear to be alone sufficient to justify the denial of such use; and the question of whether there may be said to be a “clear and present danger” of the overthrow of our government by force and violence would appear to be immaterial.

But if such considerations be deemed insufficient to render immaterial the question of "clear and present danger, ’ ’ there are nevertheless no definite indications in the decisions of the United States Supreme Court that .the provisions of section 19432 of the Education Code should be declared unconstitutional. On the contrary, the wording of that section bears similarity to the wording of the Criminal Syndicalism Act (Stats. 1919, p. 281), and that act has been held to be constitutional in unanimous decisions of the United States Supreme Court and of this court. (Whitney v. California, 274 U.S. 357 [ 47 S.Ct. 641 , 71 L.Ed. 1095 ]; People v. Steelik, 187 Cal. 361 [ 203 P. 78 ].) That act, unlike the act before us, was a penal statute. The “clear and present danger” rule was discussed in the concurring opinion in the Whitney case but the conviction under the act was unanimously sustained. De Jonge v. Oregon, 299 U.S. 353 [ 57 S.Ct. 255 , 81 L.Ed. 278 ] is adequately discussed in People v. Chambers, 22 Cal.App.2d 687 at p. 699 [ 72 P.2d 746 ]. The De Jonge case likewise involved a penal statute and while the court reversed the conviction upon the ground that the “Oregon statute as applied to the particular charge as defined by the state court is repugnant to the due process clause of the Fourteenth *561 Amendment,” it cited with approval both Whitney v. California, supra, and Gitlow v. New York, 268 U.S. 652 [ 45 S. Ct. 625 , 69 L.Ed. 1138 ],

In the last mentioned ease the United States Supreme Court said at page 669 : “That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen. The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler’s scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency.”

This court has said: “The right of free speech does not include the right to advocate the destruction or overthrow of government or the criminal destruction of property” (People v. Steelik, 187 Cal. 361, 375 [ 203 P. 78 ]); and the United States Supreme Court has said: “The Constitution was adopted to preserve our Government, not to serve as a protecting screen for those who while claiming its privileges seek to destroy it.” (United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 414 [ 41 S.Ct. 352 , 65 L.Ed. 704 ].)

In Whitney v. California, 274 U.S. 357 [ 47 S.Ct. 641 , 71 L.Ed. 1095 ], the United States Supreme Court stated at page 371: “Nor is the Syndicalism Act as applied in this case repugnant to the due process clause as a restraint of the rights of free speech, assembly, and association.

*562 ‘ ‘ That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom; and that a state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question. Gitlow v. New York, 268 U.S. 652, 666-668 , 69 L.Ed. 1138, 1145, 1146 , 45 S.Ct. 625 , and cases cited.

“By enacting the provisions of the Syndicalism Act the State has declared, through its legislative body, that to knowingly be or become a member of or assist in organizing an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism as a means of accomplishing industrial or political changes, involves such danger to the public peace and the security of the state, that these acts should be penalized in the exercise of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute (Mugler v. Kansas, 123 U.S. 623, 661 , 31 L.Ed. 205, 210 , 8 S.Ct. 273 ), and it may not be declared unconstitutional unless it is an arbitrary or unreasonable attempt to exercise the authority vested in the state in the public interest (Great Northern R. Co. v. Clara City, 246 U.S. 434, 439 , 62 L.Ed. 817, 819 , 38 S.Ct. 346 ).

“. .-. We cannot hold that, as here applied, the act is an unreasonable or arbitrary exercise of the police power of the state, unwarrantably infringing any right of free speech, assembly or association, ...”

And in considering the validity of our election statute, this court said in Communist Party v. Peek, 20 Cal.2d 536, 551 [ 127 P.2d 889 ] : “There is no doubt, however, that the remainder of section 2540.4 comes within the Legislature’s power to prescribe tests and conditions for participation in primary elections. This power certainly includes the right to adopt tests designed to exclude those political parties advocating the overthrow of the government by unlawful means or those parties carrying on a program of sabotage, force and violence, sedition or treason. Such groups constitute an immediate *563 threat to the functioning of our institutions, including the continued exercise of the right of suffrage. Since it is within the power of the state as to such groups to restrict even the rights of free speech and free press (see, for example, Whitney v. California, 274 U.S. 357 [ 47 S.Ct. 641 , 71 L.Ed. 1095 ]; Stromberg v. California, 283 U.S. 359 [ 51 S.Ct. 532 , 75 L.Ed. 1117 ]; De Jonge v. Oregon, 299 U.S. 353, 364 [ 57 S.Ct. 255 , 81 L.Ed. 278 ]), it clearly was within the reasonable bounds of the Legislature’s power to determine that these bodies should also be barred from the primary election ballot. Under such circumstances we have no doubt that the Legislature’s power to exclude parties and individuals from participation in a primary election extends to those groups whose political beliefs create a clear danger to the continued existence of the institutions under which our constitutional form of government functions.”

In the óbscurity of the definition and application of the “clear and present danger” rule, it has been suggested that there may be some doubt as to whether the Supreme Court of the United States would still adhere to the views expressed in the Gitlow case, supra, in the consideration of a similar conviction under a penal statute. I am of the opinion that it would but I believe there is no doubt that it would still adhere to those views in upholding the right of any state to adopt reasonable provisions, such as those embodied in section 19432 of the Education Code, seeking to prevent the use of its school buildings as meeting places by those whose avowed purpose is the overthrow of our government by force and violence or by those who are unwilling to disclaim such purpose. Until the United States Supreme Court may have definitely repudiated those views, I believe this court should uphold the reasonable and salutary provisions of that section.

It might be stated that some application of the "clear and present danger” test since the Gitlow case, supra, has been in cases such as habeas corpus proceedings arising after commitments for contempt, in which there has been no legislative evaluation of the particular type of utterance or its consequences. Thus, it was said in Bridges v. California, 314 U.S. 252 , at page 261 [ 62 S.Ct. 190 , 86 L.Ed. 192 ] : “The judgments below, therefore, do not come to us encased in the armor wrought by prior legislative deliberation.” It has always been recognized that where the Legislature has appraised a particular kind of situation and found a specific *564 danger sufficiently imminent to justify a restriction on a particular kind of utterance, such determination should be given great weight when the law is challenged on constitutional grounds. (See Herndon v. Lowry, 301 U.S. 242, 258 [ 57 S.Ct. 732 , 81 L.Ed. 1066 ]; Cantwell v. Connecticut, 310 U.S. 296, 307 [ 60 S.Ct. 900 , 84 L.Ed. 1213 , 128 A.L.R. 1352 ]; Graves v. Minnesota, 272 U.S. 425, 428 [ 47 S.Ct. 122 , 71 L.Ed. 331 ]; Bridges v. California, 314 U.S. 252, 260 [ 62 S.Ct. 190 , 86 L.Ed. 192 ].) Here the Legislature has appraised the situation and has made its determination, which determination should be accorded great weight and should not be set aside by this court unless it clearly appears that it was without any foundation.

While I do not believe that further reasons for sustaining the constitutionality of section 19432 of the Education Code are necessary, one further consideration should be mentioned. The reenactment of the Civic Center Act in 1943 and the amendment to section 19432 in 1945, together with the facts giving rise to its application here, all occurred during a time of emergency when a state of war, as declared by Congress, existed between our government and certain foreign powers. During such periods of national' emergency the imperative need for united effort to sustain our government and for all reasonable measures to prevent attempts at its overthrow, from without or within, seems obvious. Regardless of any divergent views concerning the “clear and present danger” rule, it should be clear that it is not for the courts, in such times of emergency, to declare that no “clear and present danger” exists when Congress, by its declaration of a state of war, has declared otherwise, and the Legislature has enacted legislation which tends to minimize that danger.

In passing, it should be stated that no question concerning the validity of other rules of the respondent board is involved. It should be further stated that the claims of petitioners— that they are known to be law-abiding citizens and that their organization is known as an important civic organization with useful purposes—are entirely beside the point. The sole question is whether all persons seeking permission to use the school buildings may be required to file affidavits in the form above set forth.

If it should be assumed, however, that the majority opinion is correct in concluding that the provisions of section 19432 are unconstitutional and void, the petitioners are neverthe *565 less not entitled to the issuance o£ the writ. The Civic Center Act, as enacted in 1943 (Ed. Code, §§ 19431 to 19439), was based upon former sections of the School Code, including section 6.750 of the latter code, which last mentioned section had long embraced the limitation or exception now contained in the first paragraph of section 19432 of the Education Code. That limitation denies to the governing boards of school districts the power to grant the use of school buildings to those who advocate the overthrow of our government by force and violence. The amendment made in 1945 to section 19432 (Stats. 1945, chap. 1213, p. 2301) specifically authorized the governing boards of school districts to require the above mentioned affidavits as an aid in determining the facts.

According to the majority opinion, the limitation and 1945 amendment are void but the remainder of the act stands. This can be so only if it clearly appears that the Legislature intended the part remaining to be enforceable even though the other part should fail (Bacon Service Corp. v. Huss, 199 Cal. 21, 32 [ 248 P. 235 ]; In re Portnoy, 21 Cal.2d 237, 242 [131 P.2d 1]; Robison v. Payne, 20 Cal.App.2d 103, 107 [ 66 P.2d 710 ]; 5 Cal.Jur. § 73, p. 648). The so-called severability clause (Ed. Code, § 26) referred to in the majority opinion is not determinative as to all possible contingencies arising out of invalidation of provisions of the code (see Bacon Service Corp. v. Huss, 199 Cal. 21, 34 [ 248 P. 235 ]; In re White, 195 Cal. 516, 521 [ 234 P. 396 ]; In re Portnoy, 21 Cal. r 2d 237, 242 [ 131 P.2d 1 ]), and placed as it is among the general provisions prefixing the entire Education Code, can be of little aid when we come to the real problem of discerning the precise intent of the Legislature with reference to the Civic Center Act. It is to be remembered that this act was last enacted in a time of war and during an emergency that has not yet been declared over. Factors of safety and domestic security have already been alluded to, and whatever may have been the attitude of the legislators at any time prior ' to such enactment, there is no question but that such factors were paramount in their minds at that time. There is nothing in the Civic Center Act to support the conclusion that the Legislature would have enacted the act without the limitation which it includes. It follows that if the limitation is invalid, the entire grant of power to the governing boards of school districts is invalid, in which event there is neither duty nor right upon the part of the respondent board to grant the use of the school building to petitioners.

*566 This view finds support in Pasadena City High School Dist. v. Upjohn, 206 Cal. 775 [ 276 P. 341 , 63 A.L.R. 408 ], The court there considered section 1741 of the Political Code which provided: “The high school board of any high school district may provide, in such manner as they deem best, for the transportation to and from the high school of such pupils thereof, except pupils living within the limits of any city, as such board find to be in need of such transportation; and the cost of the transportation shall be deemed a part of the cost of maintaining the high school and paid accordingly.” (Emphasis added.)

The constitutionality of the emphasized exception, which had been added by amendment, was there challenged. This court said at page 779: “Assuming for the moment that the entire exception be void, its invalidity would destroy the whole grant of power, for there is no indication that the legislature would have enacted the amended section without including the exception. (See Bacon Service Corp. v. Huss, 199 Cal. 21 [ 248 P. 235 ]; Mordecai v. Board of Supervisors, 183 Cal. 434 [ 192 P. 40 ].) On the contrary, the character of the legislation plainly indicates that it was not the intention of the legislature to permit free transportation to be afforded to all high school pupils regardless of the proximity of their homes to the high school if the exception should be held invalid.” (See, also, 5 Cal.Jur. § 71, p. 645; 11 Am.Jur. § 155, p. 842; „ Lewis’ Sutherland Stat. Const. (2d ed.), vol. 1, § 306.)

Here, as in the Pasadena High School case, the entire act constituted a grant of power, subject to a limitation or exception, and only the limitation or exception was challenged on constitutional grounds. To paraphrase the language of the Pasadena High School ease in its relation to the case at hand: ‘ ‘ The character of the legislation plainly indicates that it was not the intention of the legislature to permit the use of school buildings to be afforded to all persons, regardless of their advocacy of the overthrow of our government by force and violence, if the exception should be held invalid.”

For the foregoing reasons, I conclude first, that the provisions of section 19432 are constitutional, and second, that even if it be assumed that those provisions are unconstitutional, petitioners are not entitled to the relief demanded.

In my opinion, the alternative writ should be discharged and the peremptory writ should be denied.

Shenk, J., concurred.