# Printing Industries of Gulf Coast v. Hill

> District Court, S.D. Texas · December 23, 1974 · 382 F. Supp. 801

URL: https://www.frixlaw.com/law-library/cases/9788575

## Case

- **Full name:** PRINTING INDUSTRIES OF the GULF COAST Et Al. v. Honorable John HILL, Attorney General of the State of Texas, Et Al.
- **Court:** District Court, S.D. Texas
- **Decided:** December 23, 1974
- **Citations:** 382 F. Supp. 801
- **Precedential status:** Published
- **Opinion:** Concurrence by Bue
- **Judges:** Bue, Gee, Singleton
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Hill v. Printing Industries of Gulf Coast, 422 U.S. 937 (1975).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9788575

## Opinion text

BUE, District Judge
(specially concurring) :
I concur in the result reached by the majority, even though I cannot join in the rationale employed in portions of the opinion. My decision regarding the constitutionality of article 14.10(b) is not based upon the denial of the First Amendment rights of the printers, since I do not believe they possess any, but rather upon the denial of the rights of persons who hire their services.
It is evident that the First Amendment protects not the written or spoken word itself, but the expression of ideas concerning social policy, political views, religious beliefs, etc. See, e. g., Pittsburgh Press Co. v. Pittsburgh Comm. of Human Relations, 413 U.S. 376, 385 , 93 S.Ct. 2796 , 37 L.Ed.2d 757 (1973); New York Times Co. v. Sullivan, 376 U.S. 254, 265-266 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964); Roth v. United States, 354 U.S. 476, 484 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 (1957). Accordingly, the protection of the First Amendment is not lim-
*814 ited to authors or speakers, but extends as well to those who distribute the written word, Bantam Books v. Sullivan, 372 U.S. 58 , 83 S.Ct. 631 , 9 L.Ed.2d 584 (1963); Smith v. California, 361 U.S. 147 , 80 S.Ct. 215 , 4 L.Ed.2d 205 (1959); Marsh v. Alabama, 326 U.S. 501 , 66 S. Ct. 276 , 90 L.Ed. 265 (1946); Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666 , 82 L.Ed. 949 (1938), or who express ideas through other types of conduct. See, e. g., Tinker v. Des Moines School District, 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969); Brown v. Louisiana, 383 U.S. 131 , 86 S.Ct. 719 , 15 L.Ed.2d 637 (1966). However, speech or conduct that expresses nothing of political or social importance is not subject to First Amendment protection. See, e. g., Roth v. United States, supra, at 485 ; Chaplinsky v. New Hampshire, 315 U.S. 568 , 62 S.Ct. 766 , 86 L.Ed. 1031 (1942); Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972). Thus, it is implicit in any consideration of First Amendment rights that a court determine what the speaker or actor is expressing and if this expression is worthy of First Amendment protection. In the instant case, the printers, by their actions, express nothing. They do not argue that they are denied the right to print anonymously their own views in support of or in opposition to a candidate. To the contrary, they seek the right to print anonymously that for which they have no feeling one way or the other. Indeed, they seek anonymity to avoid expressing any type of conviction. Nor do the printers seek to distribute ideas. They merely receive orders from their clientele and return the finished product to the person hiring their services.
In this regard, a printer is to be distinguished from the publisher of a newspaper. Both are similar in that they require the services of a printing press. However, there the similarity ends. It' is inherent in every newspaper that editorial judgment is involved, not only in the expression of viewpoint contained on the editorial page, but also in the selection, rejection and placement of news items contained within its pages. See Pittsburgh Press Co. v. Pittsburgh Comm. of Human Relations, supra at 386 , 93 S.Ct. 2553 . Furthermore, a newspaper publisher is actively involved in the distribution of that which he prints. Contrary to the printer, he is not just a mechanical means of reproduction of the printed word.
Furthermore, I do not find; for much the same reasons as expressed above, that the printers’ First Amendment right of association is violated by article 14.10(b). The right of association, like the right of free speech, is protected in order to promote the expression of ideas.
It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech .... Of course, it is immaterial whether the beliefs sought to be advanced by the association pertain to political, economic, religious or cultural matters
N.A.A.C.P. v. Alabama, 357 U.S. 449, 460 , 78 S.Ct. 1163, 1171 , 2 L.Ed.2d 1488 (1958).
The right of ‘association,’ ... is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion ....
Griswold v. Connecticut, 381 U.S. 479, 483 , 85 S.Ct. 1678, 1681 , 14 L.Ed.2d 510 (1965). In the instant case, however, the association of the printers and those who hire their services is not for the purpose of expressing any thoughts held by the printers; rather, it is purely a commercial relationship. Indeed, the printers seek anonymity because they do not necessarily hold the views of their customers. Purely commercial speech is not entitled to the protection of the First Amendment. E. g., Valentine v. *815 Chrestensen, 316 U.S. 52 , 62 S.Ct. 920 , 86 L.Ed. 1262 (1942). I do not believe that commercial association should be accorded any more sacred a position.
However, in holding that the printers have no First Amendment rights of their own in this situation, the importance of the printing press and the man who operates it is not to be underplayed. It cannot be questioned that his role in providing a means for expression is indispensable. But his importance as a means for the exercise of First Amendment rights for those hiring his services does not give him First Amendment rights beyond his own right of self-expression. Accordingly, a printer who merely performs a mechanical function is not exercising his First Amendment rights. In summary, the printers seek to print anonymously when they themselves are saying nothing and supporting nothing. Their actions cannot constitute “speech” as protected by the First Amendment.
Even though the action of the printers is not accorded the protection of the First Amendment, this does not preclude consideration of their challenge to the constitutionality of article 14.10(b). Although the statute in question may be constitutional as applied to the printers since they have no First Amendment, rights, these same printers may still challenge the statute as facially uncon-, stitutional. This is so because the bar to standing to assert such a challenge is traditionally disregarded when a statute dealing with First Amendment rights is attacked as facially unconstitutional for overbreadth. See Broadrick v. Oklahoma, 413 U.S. 601, 610-613 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973); United States v. Raines, 362 U.S. 17, 22 , 80 S. Ct. 519 , 4 L.Ed.2d 524 (1960). In cases falling within this narrow ambit, the Supreme Court has held that it will bypass its usual practice of considering first if the constitutional rights of the individual challenger have been violated and will consider the statute as a whole, regardless of whether its application to the challenger can be viewed as unconstitutional. See Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 , 612-26 (1962). “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression,” Broadrick v. Oklahoma, supra at 612 , 93 S.Ct. at 2916. Accord Gooding v. Wilson, 405 U.S. 518 , 92 S.Ct. 1103 , 31 L.Ed.2d 408 (1972); Dombrowski v. Pfister, 380 U.S. 479, 486 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965); N.A.A.C.P. v. Button, 371 U.S. 415, 432-433 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963); Thornhill v. Alabama, 310 U.S. 88, 97 , 60 S.Ct. 736 , 84 L.Ed. 1093 (1939); Mancuso v. Taft, 476 F.2d 187, 190 (1st Cir. 1973); LeFlore v. Robinson, 434 F.2d 933, 936 (5th Cir. 1970), vacated on other grounds, 446 F.2d 715 (1971).
Of course, the law’s special treatment of the issue of standing in the First Amendment area does not mean that any person may challenge a statute concerning free speech. It is necessary that other relevant aspects of a “justiciable controversy” be present. See Flast v. Cohen, 392 U.S. 83, 95 , 88 S.Ct. 1942 , 20 L.Ed.2d 947 (1968). In any action involving a declaratory judgment as to the constitutionality of a state law, there must be sufficient adversity to warrant federal adjudication. See Golden v. Zwickler, 394 U.S. 103, 108 , 89 S.Ct. 956 , 22 L.Ed.2d 113 (1969); Poe v. Ullman, 367 U.S. 497 , 81 S.Ct. 1752 , 6 L.Ed.2d 989 (1961); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L. R. 844, 863-64 (1970). Furthermore, although it is not necessary that the party challenging the statute be the subject of a criminal prosecution, see Doe v. Bolton, 410 U.S. 179, 188-189 , 93 S.Ct. 739 , 35 L.Ed.2d 201 (1973), it is necessary that the plaintiff be subject to “a real threat of enforcement”. Poe v. Ullman, supra at 507 , 81 S.Ct. 1752 .
*816 In the case presently under consideration, it is readily apparent that we are concerned with a statute affecting, on its face, First Amendment rights of speech and press. Plaintiffs have challenged the statute because of vagueness and facial unconstitutionality. Unlike the challenged statute in Broadrick , article 14.10(b) is not concerned with the regulation of conduct, but with the regulation of speech itself in the form of printed material. Further, the threat of enforcement of the challenged statute is sufficiently real to deter the printing of anonymous literature and to support the printers’ right to bring this action. Article 14.10(b) provides fines and imprisonment for noncompliance with its terms. The statute operates directly upon the plaintiffs in this action. Although the Court has been presented with no evidence of enforcement of the article’s penal provisions, there is no indication that state officials intend to disregard the law. Accordingly, the plaintiffs have alleged a justiciable controversy, and it is necessary to consider the merits of their claims that article 14.10(b) is facially unconstitutional and void for vagueness.
While First Amendment rights are accorded a “preferred position” among Constitutional rights, Saia v. New York, 334 U.S. 558, 561 , 68 S.Ct. 1148 , 92 L. Ed. 1574 (1948), the right of free speech is not absolute. See, e. g., Adderly v. Florida, 385 U.S. 39 , 87 S.Ct. 242 , 17 L.Ed.2d 149 (1966); Cox v. Louisiana, 379 U.S. 536 , 85 S.Ct. 453 , 13 L. Ed.2d 471 (1965); Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247 , 63 L. Ed. 470 (1919). Thus, any consideration of the constitutionality of a statute allegedly infringing First Amendment rights first must involve a balancing test to determine if the interests of the state in regulating expression substantially outweigh those of the individual. To prevail, the state’s interest, it appears, must be compelling. See, e. g., American Party of Texas v. White, 415 U.S. 767 , 94 S.Ct. 1296 , 39 L.Ed.2d 744, 760 (1974); N.A.A.C.P. v. Button, 371 U.S. 415, 438 , 83 S.Ct. 328 (1963). Once the state is found to have the requisite interest in regulation, a court must consider if this interest burdens unnecessarily other protected activities. See, e. g., Grayned v. Rockford, 408 U.S. 104 , 116-117, 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972). “Free expression ‘must not, in the guise of regulation, be abridged or denied.’ ” Id. at 117, 92 S.Ct. at 2304, citing Hague v. CIO, 307 U.S. 496, 516 , 59 S.Ct. 954 , 83 L.Ed. 1423 (1939).
In the instant case, we are faced with the task of balancing the interest of the state in preventing election fraud with that of the individual in publishing campaign literature anonymously. It is beyond question that the state has a compelling interest in preserving the integrity and orderliness of elections. See, e. g., Storer v. Brown, 415 U.S. 724 , 94 S. Ct. 1234 , 39 L.Ed.2d 714, 725-726 (1974); Rosario v. Rockefeller, 410 U.S. 752, 761 , 93 S.Ct. 1245 (1973); American Party of Texas v. White, supra at 761 n. 14, 94 S.Ct. 1296 ; Jenness v. Fortson, 403 U.S. 431, 442 , 91 S.Ct. 1970 , 29 L.Ed.2d 554 (1971); Bullock v. Carter, 405 U.S. 134, 145 , 92 S.Ct. 849 , 31 L.Ed.2d 92 (1972). At the same time, it is well recognized that the individual has a right to exercise his First Amendment rights anonymously. See Talley v. California, 362 U.S. 60 , 80 S. Ct. 536 , 4 L.Ed.2d 559 (1960); Bates v. Little Rock, 361 U.S. 516 , 80 S.Ct. 412 , 4 L.Ed.2d 480 (1960); N.A.A.C.P. v. Alabama, 357 U.S. 449 , 78 S.Ct. 1163 (1958). This right of anonymity is not, however, unqualified. See United States v. Harris, 347 U.S. 612 , 74 S.Ct. 808 , 98 L.Ed. 989 (1954) (upholding Federal Lobbying Act requiring registration of paid Congressional Lobbyists and disclosure of contributions); Lewis Publishing Co. v. Morgan, 229 U.S. 288 , 33 S.Ct. 867 , 57 L.Ed. 1190 (1913) (upholding the required disclosure of publisher, editor, managers, etc., of newspaper seeking second class mailing privileges); Veterans & Reservists for Peace in Viet Nam v. Regional Comm’r., 459 F.2d 676 (3d Cir. 1972) (upholding licensing require *817 ments of Trading with the Enemy Act); Wirtz v. Fowler, 372 F.2d 315 (5th Cir. 1966) (upholding the Labor-Management Reporting and Disclosure Act requiring report of activities of persons hired by employers to influence employees in organizing activities); Powe v. Miles, 407 F.2d 73 (2d Cir. 1968) (upholding college regulation requiring advance notice of demonstrations). See also Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 (1972) (grand jury can require disclosure of newspaper sources).
With full recognition of the state’s interest in regulation of the election process, I concur in the conclusion of the majority that article 14.10(b) is unconstitutional in its overbreadth. I reach this decision after due consideration of the authorities cited above as examples of valid disclosure laws. In each instance in which a disclosure statute has been upheld, the statute has been narrowly drawn to regulate only the narrow spectrum of activity that is necessary to protect the state’s interest. A private individual under the regime of the valid disclosure laws cited could still exercise his rights of expression anonymously. Article 14.10(b), however, is not limited to prohibiting election fraud. In seeking merely to facilitate the investigation of such fraud, it prohibits the anonymous publication of not only fraudulent literature, but all campaign literature, whether the contents be true or not. The prohibition of anonymous expression is thus direct and immediate. No individual seeking to have campaign material printed is immune from its application. Under article 14.10(b), it is not necessary that the party subject to the law seek some government benefit, such as second class mailing privileges, or that he be engaged in a specialized occupation, such as a paid lobbyist; nor does the prohibition become operative only if conduct as well as speech is involved, as in the case of a college demonstration. While a law directly prohibiting the publication of fraudulent literature would no doubt be constitutional, the state simply has no compelling interest in the prohibition of all anonymous campaign literature.
Although the state argues that article 14.10(b) is limited in that it applies only to election activities, I do not find that this limitation is sufficient to pass constitutional muster. Under no circumstances is the right of free expression more important than in the political arena, and no better opportunity is provided for the exercise of these rights than in an election. “[D]ebate on public issues should be uninhibited, robust, and wide-open, [even though] it may well include vehement, caustic,. and sometimes unpleasantly sharp attacks on government and public officials.” New York Times v. Sullivan, 376 U.S. 254, 270 , 84 S.Ct. 710, 721 (1964). In the midst of the current zeal to prevent the fraudulent campaign practices that seem to have prevailed in the 1972 election year, legislatures and courts should not lose sight of that which is most fundamental to our society. The importance of the lone dissenter cannot be overestimated. To undermine the right to speak anonymously is to jeopardize this ability to dissent.
Thus, I am in accord with the view of the majority that article 14.10(b) is unconstitutional insofar as it requires the name of the printer or publisher to be published on all campaign material. Although the printer may have no First Amendment right to conduct his business anonymously, the disclosure of his name is primarily for the purpose of identifying the author or distributor of the printed material and constitutes an abridgment of the latter’s First Amendment rights. By virtue of my decision regarding the ability of the plaintiffs to assert the First Amendment rights of others, my consideration of the challenged statute necessarily has been broader than that of the majority. Accordingly, I would hold further that the statute is unconstitutional in that it requires the name of the person paying for the advertisement to appear on the face of the material and thus abridges his First Amendment rights as well.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788575. Public record. Not legal advice.