Amicus Curiae Brief — Jordan v. Weaver

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SUBJECT INDEX © oa

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Interest of the amicus Curiae -......::cecssss-ssslesseceeeeeeee i. i ?

The grounds for the denial of the writ ............... —

1, Fea isles dc babiicn

Il; : Merits ......... Acsept hice Sieahetalaita baacogouendsatin |

Summary of the argument ......... Lecsaiidiageeilbsaitaascteleiliniens “WU

Argument ARASH CSO ON OMe alt Te iy

ry

The Supreme Court of’ California held, as an in-

dependent and adequate nonfederal. ground of de-—

cision, that the. Act is obnoxious to Section 9 of - |

Article I of the California Constitution Midnuitasaismanda |

II.

The decision of the California Supreme Court is ~

_ wholly in accord with‘ ‘applicable Cociaons of: this

‘court.

JA. The so-called “Free Television Act” abro-

gates freedom of speech and of_expression

within the. intendment of the Fif$t_Amend-

ment to the Constitution of the United States,

- * as made applicable to state action by the due. .

. process, clause of the Fourteenth Amendment 10 -

1.

Plausible or colorable justifications,

which might support a legislative prohi-

‘ bition of certain activities in the ordinary

fields of commerce and industry, will

not suffice where freedom of expression .

is denied 2.....ceceeeooe- Oi

:» Where, as here, a statute prohibits ‘or

’. abridges freedom of speech or of expres-

_ Sion in advance, it comes before the ~

courts bearing a heavy presumption

agelint Sy: WIND: <ticwilocectiniiouien

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——_~ “regulate”-a business, but rather an at-

-“: a

B. The atiecnpia to uphold the validity of the

Act under the Fi irst Amendment are devoid

of eee lidcuapctes EL OLD Oe Cle PN NOE Bee 3

1. The First hides protects both the “

“means and ‘he content of communica-°

I BO IG ecicctgecettn te ciketienndincesesttnoviins 16°

~ 2. -The First Amendment proects ‘aot some,

but all'means and miedia of expression ..,, 17

3. The First Amendment protects communi-

cations made in the course ‘of « ‘commier-

a) ae RECA Cr 17

4.» The First Amendment protects the right Bo a

< the public to listen as well as the right :

of a given medium to disseminate mate-

‘rial of general interest leet x,

5. The Act evidences, not a valid attempt ‘to Soko

tempt to suppress a qualified medium for

‘the dissemination of news, views ae en-

tertainment TRS ee eR a FSR ORE —

6.. The suppression of freedom of speech

_ and of expression implicit i in the Act is

wholly without justification or excuse . = 3 Se re

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- TABLE OF AUTHORITIES CITED —

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Cases ie re Page

Rrodbtcah Becadcakiing?: Co. v. United States, 110

F. Supp. 374, aff'd 347 U.S, 284. -rergersetenenedO, 1

American Civil Liberties Union v. Poaee of “Educa-

tion, 55 Cal. 2d 167 .,---eecvnnseeeteennnssereecntnetesennnssttet 6

Associated Press v. United States, 326 U. Ss. BORE is Bee

a Bantam Books, Inc. v. Sullivan, 373 US. 58 a

eae Eg DEST aed bey AE ETE Bo ties Mabe 14, 17, 19, 24

Breard v. Aiioceasiicin. 341 US. G2 ic ne 22, 23,-24 -

Canon v. Justice Court,,61, Cal. 2d’ MAS oii cites 6

Dailey \ v. Superior. Court, 112 Cal. 9 .. sisi Se ae

_ Fiske v. Kansas, 274 ORS. RONG eater ne eat Ae

Freedman v. Maryland, 380 U.S. 51,, RoC Een ome

-Q.__ Griswold-v. Comnecticut, 381 U.S. pag

Saeene: v. ‘American Press Co., 297 U.S: 233 nce

te Seater ginispecspysomom ly 19, UR, 19, ae

jankovich v. Toll Road Couimiddion, 379 USS. 487...2, ts ie

‘Joseph Burstyn, Ine. v. ia a JAS US. BS ........

TW ETE: meccereetel Ll, 17, 18, 24.

_|__Katzev. v.Gounty of Los Angeles, 52 Cal, 2d 360... 6. |

Marsh v. Alabama, 326 U.S. 501 ..........--...20, 23, 24

- Minnesota v. National Tea Co., 309 U.S. satel ea 7

Murdock v. Pennsylvania, oo US. 106 casas...

Near \ v. "Minnesota, $03 11S. 799 Se

| gree ae Sn Gt osoctts wece-,-5, 10; 13, 14, 17, 18, 19, 21, 24

- New Voek City v. Central ried Bank, ie an:

OI RINE WR Wg. <aicccsantntannctestens ectalaneaseriptes Pica nes 7

iow Vekk Times ¥. Sillivan, 376 US 254 11, ig .i9

My ; i Pa eimai

Ae Ls “Wwe,

, ATT : NE 5 ees & | Page : “ :

Rumely v. Unitéd States, 197 F. 2d 166° Nictocces Senin 10

Saia v.- ‘New York, 334. U.S. 558 EBs, “ll, 16; 17

|. Shelton v. Tucker, 364 U:S. 479 oncncsievninigendncs 24

_. . Smith v. California, 361 U.S. 147 setae BREN 7, 18, 19 *s.

Ttiomas Vv. Collins, 323 U:S. 516 °evsccinincseenenrsdQo4 ee

Weaver v. Jordan, 64 A.C. 243 wtecnninamnamere 6 1.

West Virginia State Board of Education v. Barnette, AS A

ae U.S. EIN ir chaaeniaeatiarahcomiiat ickacneiesalacmueiaiieas WS

--Winters v. New. York, 333 U.S. 507 .. _17, 18, “19, ya

‘Wollam v. Palm Springs, 59 Cal. 2d 276 seen eee Sin 16

. Wrather-Alvarez, etc., Inc. -v. Hewicket , 147 ie d

“App 2d 509. aes sass lees iive path sbi uae! “6

| Zeitlin v. Arg WO AON iL ea

"Statutes . :

¥ California Constieiods Arde 1 I, Sec. 9. ay Je 5, 6. :

| _.1-California, Statutes of 31965, D. 7D ky [Eee ey “aes

ae Free “Television Act, Sec. 2 SAL NAR 13 “\ |

Free Television Act, Sec. 3 AEROS Eee int, 16

United States" Constitution,. First Achaia A

pens Daesensteiasisnantaanscaity 4, 6, 10, 14, 15, 19; 20, 22; 25

United States Constitution, F “ourteenth Amendment

cssssseecennnnseseeaneseecennussereenanaceeeensssecs rosseeeesseeenenns 10, 20, .

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IN. THE

- Sprem oti of the ‘the United States

October Term, 1965 en Ewen te

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asm th -No..1370

FRANK M. Jorpay, Secretary of State, of the ‘State of

California,.. eee ee Petitioner,

, , tgs ret ae ;

$8.0. Weaver, D. £. O’Nen and T. AP ‘Geren How, 2

; , _ Respondents.

Brief of International Telemeter Corporation,

Amicus Syren in ae

-

ro and for the reasons hereinafter set forth.

- Interest of the pease Curiae. |

Se The: Wass aieihe having’ consented to. the filing of -

this brief,-International. Telemeter Corporation respect-.

we fully submits the same as a’friend of the Court and re-

spectfully suggests that the Writ be denied upon. the’

The iriterest of ‘this amicus ‘curiae (hereinafter ‘Tele- .

meter) -in this action and in the questions presented

_ arises from the fact that it is engaged in:the business

of manufacturing, developing, improving and selling as-

sembled ‘components; known as “telemeter systems,” for.

.the origination; transmission and reception of pay. tele-

vision programs in private homes in California and else:

’ where and in the business of selling franchises to others

to use its equipment ‘in the presentation of such pro-

grams. The so-called “Free Television Act” (1 Cal.

_ Stats. 1965, p, A-132) has deprived Telemeter of its

. so

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market for the sale of its said equipment and Sitch

chises in California, A’ substantial part of “such equip-

ment, particularly distributors’ units and home receiv-

ing units,- “including . patented electronic pay metering

and recordjng equipment, is manufactured in Pennsyl-

vania and Illinois and thereafter shipped to California

for assembling. The Act also deprives Telemeter of the

right, under its articles of incorporation and its certifi-

_ tate of qualification to do business in California, to use .

pay television systems in California in selected test

areas for the proper and necessary development and i im-_

provement of its’said pay television telemeter systems

and the. components thereof destined for sale in inter-

state commerce and, but for said Act, in California,

‘Telemeter and its predecessors in interest’in the carry-

ing on of said business have expended over. $5,000,000

in the last 15 guia in: the: ‘development of said busi- —

ness.

F or, the reasons given, /*Telemetes: is’ vitally interested

in the’ question of whether the Act is unconstitutional,

‘as held by. the Supreme Court of California, or the re- ‘i

verse, as contended by Petitioner.

The Grounds for the Denial of the Writ.

These are:

ae urisdiction.

| “Iti is “respectfully suggested that the Court should de- ©

Cline jurisdiction for the reason that the Supreme Court’ -

- of California decided : ‘the cause upon an adequate and

. : ‘independent nonfederak ground : That the “Free Televi-

- sion Act” abrogates freedom of speech and of expres-

‘sion within the ‘intendment of Section. 9 .of Article: I

. -of the Constitution, of California:- Jankovich v. —— ;

; Road Commission, 379 u. S. 487, 489- 90:

—— o

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e. 11° Merits.

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The Supreme Court of. California decided the federal te

'. question relating to the abrogation by. the “Free Tele-

vision Act” of freedom of speech and of expression in

' a’ manner wholly i in accord with ‘applicable decisions of

this Court. : |

Summary of the Aigukhent:

As regards the question of jurisdiction, the California

Suaredie’ Court’s judgment: rests upon an adequate and -

independent nonfederal ground, namely, that the Act. is.

obnoxious to Section 9 of Article I of the California

Constitution which’ guarantees freedom of speech as. a.

matter of state law. This is not a situation where, as

the cases say, the state ground is so interwoven with

- the federal as to sustain the Court’s jurisdiction. ‘On

the contrary, the intention. of-the California court to

adjudicate the unconstitutionality of the offending stat-

ute under state law is clear; and the: adequacy sof this

| ground ‘to uphold ' the judgment is not open to. ques-.

tion. Moreover, the California Supreme Court has held

». ° that the coverage of its Section ’9 of Article I is broader

-than that. of the First’ Amendment, which is but_.an-

other way of saying that the “Free Television Act”

independently and°a fortiori offends Section 9 of Ar-

ticle I’ The result is that the,state court’s holding as to

Section 9 of ‘Article I presents: a clear example of an

adequate and independent state ground of decision. -

Turning to the merits, the suppression by the, “Fred?

Television Act’. of the proscribed ‘medium is complete; -

~~ the Act. amounts to total censorship, in advance, so - .

far as transmission to and reception in the homie are

concerned. There are two, cardinal principles which are”

. fundamental in a free Specen case. Fi jos ‘Tiret 1 is that

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SP EROUEN PERLE ETS

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- plausible or colorable justifications which might sup-

port a legislative Prohibition of certain activities in the

ee ordinary fields of - commerce and industry will not suf- -

of

r” fice where freedom of expression is denied. The second

| is that where, as here, a statute prohibits freedom of

x speech or of expression in advance, it comes before the

‘courts bearing a heavy presumption against its valid-—

ity. The “Free Television Act” is-therefore to be eval-

uated as to its constitutionality, not only without bene-

fit of any presumption as to its validity, but rather bir-

dened with a strong ‘presumption running: in’ the. other

direction: : : ae, 74

The First Atneaiiment protects both the means and

the conte of.communications to others: It protects the -

right of the public to see, to listen and to hear, as well

as the right of a giveri medium to disseminate mate-

‘rial of general interest. It protects not some, but all

means and media of expression, and it protects corn-

munications made in the course of commercial en-

deavor. Accordingly, it may not be evaded by prohibit-

ing the sale or distribution of protectible material.

The Act evidences, not a valid-attempt to regulate a

business, but rather an attempt to suppress a qualified

medium for the dissemination of news, views and en-

_. tertainment. The Act. is no more valid as a prior “te-

straint than would be an enactment forbidding home

distribytion of newspapers to their paid-up subscribers.

The suppression of freedom of speech ‘and of expres-

sion implicit in the Act is wholly without justification.

or valid excuse. The Act fails to meet either the clear

and present danger test or the ad hoc balancing test,

from which it follows that the action of the California

Supreme, Court in voiding the statute is wholly in ac-

_cord with applicable decisions of this Court. _

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ARGUMENT. .

Ay $ : | ois? TT ti | . |

THE SUPREME COURT OF CALIFORNIA HELD, AS

AN INDEPENDENT AND ADEQUATE .NONFED-.

‘ERAL GROUND OF DECISION, THAT THE ACT

IS OBNOXIOUS TO SECTION 9 OF ARTICLE I

OF THE CALIFORNIA CONSTITUTION.

The Califorriia Constitution contains its own guar-

antees of freedom of speech and of, expression. Section

9'of Article if provides:

“Sec. 9. Every citizen may freely speak, write,

and publish his sentiments on all subjects, being ©

responsible for the abuse of that right; and no law ©

shall be passed to pacale or aries # the pissed of

speech or of ~ press. .

It has been as that the idenailiat coverage of Sec-

tion Oy is ‘broader than the guarantees of the First ©

‘Amendment. Dailey v. Superior Court, 112 Cal. 94.*

The Dailey case was a proceeding in certiorari to re-

view the action of the San Rrancisco Superior Court

in issuing an order requiring the petitioner to cease and

desist from the presentation of a play assertedly based

upon the facts of a criminal trial then pending. The

writ annulling the lower court’s action was granted and

the €alifornia Supremfe Court, por of Section 9.

_ of Article I, had this to.say:

“ . . The purpose of this provision of the con-

stitution was the abolishment: of censorship, and

for courts to act as censors is directly violative of

‘that purpose. ‘This provision | of the constitution as

*Daily v. Superior Court was cited in Near v. Minnesota,

infra, 283 U. S. at 719,-n. 11, as to the constitutional impro-

priety of prior restraints,

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* té freedom of speech varies , somewhat from that

of the constitution of the United States, and also

-Mmore.or less, from the provisions of many state

constitutions treating of this question; but, if there

« is a material difference in the various provisions, it -

works no harm to this petitioner, for the provision

here considéred is the broader, and gives him

‘ greater liberty in the exercise of .the right

granted. ”* (112 Cal. at 97-98. )

This j is the equivalent of saying that arr abridgment of -

the First- Amendment guarantee of free speech is in-

‘deperidently and @ fortiori obnoxious, to Section 9 of

Article. :

It was in the light of these principles of California

law that the California Supreme Court held in the in-

stant one

. For reasons which will appear, we have con-

cluded that the trial court correctly determined. the

’ Act to be invalid as an abridgement of the free —

speech guaranties of state and federal constitu-

- tions.” (Weaver v. Jordan, 64 Adv. Cal. 243; Peti-

__ tion, Appendix B, 17.) :

In addition to the decisions of this Court, the Califor-

_ nia Supreme Court cited the following California cases

dealing with the free speech guarantees of both the state

' and federal constitutions. Katzev v. County of Los.

Angeles, 52 Cal.2d 360, 365; American Civil Liberties

Union v. Board of Education, 55 Cal.2d 167, 171;

Wrather-Alvarez, étc., Inc. v. Hewicker, 147 Cal.App.

2d 509, 512; Zeitlin v. Arnebergh, 59 Cal.2d 901, 908-

“' 909: Canon v. Justice Court, 61 Cal.2d 446; 451.

Se

*Emphasis here, as elsewhere, is supplied unless otherwise

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. The California court also stated the trial court’s hold-

‘ing inthe following language:

.-The trial court concluded that the Act

abridges both the state and federal constitutional

guarantees of free speech. (U.S. Const., Amend-

ments I and XIV; Cal. Const., Art. I, § 9.)”

‘

And it was the trial court’s judgment predicated upon

- these twin conclusions, which the state supreme court

upheld, upon the same grounds. :

In these circumstances. the present case falls squarely .

within the pattern of such cases as New York City v.

Central Savings Bank, 306 U.S. 661 (and see opinion « .

below, 280 N:Y. 9, 10) and Jankovich v. Toll Road ©

Commission, supra, 379 U.S: 487. The. situation pre-

sented in each of those cases was identical with the sit- -

uation ‘here: the state court, there as here, had held a

statute unconstitutional on both. federal: and state

grounds. In the Central Savings Bank case ‘certiorari

was denied per curiam for that reason; in Jankovich

the writ. was dismissed as having been improvidently

granted, 379 U.S. at 489, 495.

Jankovich completely answers the contention made by

. petitioner Jordan that the state ground is so interwoven ‘

- with the federal as to render the Court unable to con-

clude that the judgment rested tipon an peed ap- :

plication of state law.*

“In Jankovich, the Court said: © |,

“As we have concluded that respondent is correct

-. in its contention that the judgment sought to be re-

*The. comnds-i in such a situation — which is not the. situation.“ P

here — would seem to be to send the cause back to the lower. court

for clarification. See, e.g., Minnesota v. National Tea Co., 309.

U.S. 551; and see dissenting opinion in the case under discus-

sion: Tankovich, as US. at 495- 496.

—

viewed is supported by an independent and adequate —

" state ground, we dismiss the writ of certiorari as

improvidently granted.

“In the Indiana, Supreme Court respondent ‘ahr 4

on the just compensation requirement of the —

Indiana Constitution as well as on the Due Proc-

ess‘Clause of the ;Fourteenth Amendment. The

Indiana Supreme Court stated the issue for’ deci-

- sion as whether ‘the ordinance purport[s] to ef-.

fect a taking of private property for public use in

violation of the provisions ‘of Article 1, § 21, of

‘the ‘Indiana, Constitution’ and \the Fourteenth .

Amendment to the Constitution of the United 7

_ States.’ 244 Ind., at 577, 193 N.E.2d 238. In re-

solving that issue, however, the Indiana Supreme

Court, quite understandably, did not analyze sepa-_

rately the effect of the.two provisions but con-

sidered them together. From that fact petitioners

would have us conclude that the state ground of de-

cision—invalidity of the zoning ordinance under

Art. I, § 21, of the Indiana Constitution—‘is so

interwoven with the other ds not to be an independ-

ent matter. ... ’ Enterprise [rrig. District v. Canal:

Co., 243: U.S. 157, 164° (dictum). (Emphasis

added.) We cannot ee ” (379 U.S. at 489-

~490.) :

Following. further discussion and analyse of the state

‘court’s decision, the Court then went on to hold, in lan-

guage fully applicable here, that “[I]ndeed, the organi-

zation and language of the opinion indicates. that, at the

least, state law is an equal ground of comnenen. ” 379

. US. at 491.

_ For the reasons given, it is respectfully suggested

_ that certiorari should be denied ‘because the decision be-

low is based upon an independent and adequate non-

federal ground.’

ee fh ee

THE DECISION OF THE CALIFORNIA SUPREME

COURT IS WHOLLY IN ACCORD WITH APPLI-

CABLE DECISIONS OF THIS COURT.

The key. question presented on the merits concerns

_the muzzling of free speech evidenced by the subject

California statute, namely, the so-called “Free Televi-

sion Act,” adopted as an initiative measure at the gen- -

eral election held in California on November 3, 1964.

The purpose and effect of the Act is to outlaw sub-

scription or pay television to the home through, the ——~

means of suppressing this medium of communication.

In addition, the statute avowedly discriminates in favor

“of what it is pleased to term “free television’ ’—which

" is to say commercially sponsored television—transmitted

for home consumption. And, sub silentio, it also dis-

criminates in favor of pay television transmitted for

_ viewing by theatre audiences. | :

. These discriminatory features, however, are: second-

ary. The basic vice of the measure consists, ‘as indi- '

_cated above, in its arrant suppression of freedom of

speech and of expression; and it is to this vice,- fatal

to the validity of the statute, that this brief‘is directed

sq far as the.merits are concerned. We shall show,“in

this regard, that the decision of the California Supreme _

Court is wholly in accord with applicable decisions

of this Court. ‘

/

wo ae.

- A. The So-Called “Free Television Act” Abrogates

. Freedom of Speech and of Expression Within

the Intendment of the First Amendment to the .

Constitution of the United States, as Made Ap-

_ plicable to State Action by the Due Pfocess

| Clause of the Fourteenth Amendment. ae

The Act. is quite clear .that no one ‘may speak or dis

séminate ideas to the home through the medium of. pay

television; it is equally clear that, ex: necessitate, no

one, in the home, may listen to a pay television trans-

mission. or receive transmitted ideas or images convey-.

ing such ideas over the: ‘outlawed medium. The suppres-

-sion of the proscribed medium.as a vehicle of transmis-_

sion to the home is complete ; it amounts to total cen-

sorship, in advance, so far as home viewers are con-

cerned. The Bar is as absolute as would be an enact-

ment prohibiting the circulation to the home of news-

papers for which a price is charged. Authorities deal-

ing with the abridgment of freedom of the press, as

well as of speech, are therefore fully apposite here.

. The First Amendment provides that “Congress shall .

make no law... abridging the freedom of speech or .

of the press. . . .” And it is now settled that, since

these rights are fundamental, the Fourteenth Amend-

ment makes . this proscription applicable to the states

and to state action. Near v. Minnesota, 283 U.S. 697, ©

707 ; Fiske v. Kansas, 274 USS. 380, 385; Grosjean v.

American Press Cc 0., (297 us. 233, 243. .

So, also, it, is settled that communication by motion”

picture, by radio and by. television are protected by the

dual constitutional provisions safeguarding freedom of

speech and of the press. Rumely v. United S tates, D.C.

-Cir., 197 F.2d 166, 177; American Broadcasting. Co.

| n, 36! pocket books.

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vu: United tates, S.D.N.Y. 110 F.Supp. 374, 389, aff'd

347 U.S.\284. And, by the same token, the right of _

free speech necessarily embodies the means used for its

dissemination, Saia v. New York, 334 U:S. 558. Nor

is the Protection lost because a charge is made fer-the _

dissemination, § f. Joseph Burstyn,-FnecW. Wilson, 343

US. 495, 501: _motionpic picture; New York Fimes v.

_ ivan, 376 U.S. 254, 266: paid newspaper advertise-.

; Bantain Books, Inc.-v. Sullivan, 372 U. S. 58, 64,

ar >

“At the threshold, and: in view neg certain. of the con- .

a tentiors made by petitioner, jt will be helpful to point

out two. cardinal principles. which are fundamental i in a

free speech case.

Se Plausible or Colorable J ustifications, Which Might

Support a Legislative Prohibition of Certain Activities

in the Ordinary Fields of Commerce and Industry, Will .

Not Suffice Where Freedom of Expression Is Denied.

The principle, frequently applied in so-called economic

due process cases, that a statute will be upheld if any

reasonable. state of facts can be conceived which will

_sustain-it, has no application to -a statute denying fre® —

speech. This proposition has been made clear by. this

Court. °

Thus, in West. Virginia 5 State Board of Education Vv.

"Barnette, 319 U-S, 624, 639, the Court said: |

“In weighing arguments: of the parties it is ifm- _.

, portant to distinguish between the - due” process

clause of the Fourteenth Amendment as an instru-

ment. for transmitting the principles of ‘the: First

* Amendment and those. cases in ‘which it is applied

for its own sake. The test .of legislation which col-

lides with the Fourteenth Amendment, because it

ie ~ Miata sae |

also. collides : with’ the principles of. the First, is

much more definite than the test when only the

Fourteenth is involved. M uch. of the vagueness of

the due process clause disappears when the specific

prohibitions of the First become its standard. The .

- right of a state to regulate, for‘example, a public

utility may well include, so far as the due process

test is con¢erned, power to impose all of the re- %

strictions which a legislature may have a ‘rational

basis’ for pting. But freedoms ‘of speech and

of press, of assembly, and of worship may riot be

infringed on such slender grounds. They are sus-

ceptible of restriction.only to prevent grave and im-

-metliate danger to interests which the. State’ may’ . ’

lawfully protect. It is important to note that while

it is the Fourteenth Ameridment which bears di- » |

rectly upon the State, it is the more specific limit-

ing principles of the First Amendment that finally

govern this. case. "(319 USS. at 639.) | :

And in Thomas v. C ollins, 323 U. S. 516, 930, the

} Court said: i ;

“For these reasons any atiatins to restrict those

- liberties must be justified by clear public interest,

_. threatened not doubtfully or remotely, but by clear

_ and. present’ danger. The rational connection be-

tween the remedy. provided and the evil to be

curbed, which in other contexts. might support

. legislation against attack on.due process grounds,

will not suffice. These rights rest on firmer foun-’

dation. Accordingly, whatever occasion would re-

stram orderly discussion and. persuasion, at appro-

_ priate time and Place, must have clear support in

public danger, actual or impending. ” (323 U.S. at

530. se |

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anda in. Griswold V: Chinieidlias. ee U. Ss. 479, it'was —

said: |

ey other words, the’ State may not cian

‘with the -spifit of the First Amendment, contract

the spectrum of available Brees ” (381 U.S.

at 482.)

' The hort of it thus, is that we are not dealing here

with the mere regulation or suppression of business arid

industrial, which is to say economic, conditions which ..

the legislative function, for reasons of its own, may

deem offensive to the public. welfare. On the contrary,

we are dealing with an attempt by a state to outlaw a

. velticle of free speech; a matter of far graver import.

That such is the operation and effect of the statute

. is-not open to question. In Near uy. Minnesota, supra, |

283 U.S. at 708, the Court emphasized “that in passing —

upon constitutional questions the court. has regard to

'_ substance-and not to mere matters of form, and that,

‘in accordance with familiar principles, the statute sfust

be tested by its operation and effect. ” Here, as in Near,

the “object of the statute is not. punishment, in the or-

‘dinary sense, but suppression” of the offending medium

of communication. (283 U.S. at 7 11. )

Thus, judged by its operation and effect, as distin-

guished from its motivation as expressed. in Section 2

of the statute, the Act suppresses free speech, the busi-

ness of supplying néws.*. views and entertainment via.

= proscribed medium and, last but far from least, the

| ig of the viewing public to listen, to hear and to see.

: tn “such a’ situation, where personal liberties are con-

- cerned; this Court does not, in testing whether due proc- °

cess is offended, , employ the formula of whether any

Ne

\

\

\

‘9

- facts may be conceived. which will sustain the ‘of fend-

ing legislation. As we have. seen, the basic freedoms

may not be ——. on such slender grounds.”

2. Where, as Here, a Statute ‘Prohibits or Abridges Free-

dom of Speech or of Expression in Advance, It Comes

Before the ‘Courts ‘ Bearing a, ‘Heavy _Presumption |

Against Its Validity.

This statute does more than censor or restrict, in ad- *

vance, utterances over pay television, although that

would be bad enough. It prohibits ‘them entirely. In

such. circumstances it is not open to reasonable discus-

-sion that a heavy presumption lies against the validity 5

of the measure. As this Court has said, “any Syeten

of ‘prior restraints of expression corhes before this

Court bearing a heavy presumption against its validity.”

Bantam.Books, ‘Inc. v. Sullivan, supra, 372 U.S. 58, 70;

Freedman v. Maryland; 380 U.S. 51, 57;. cf. Near v.

Minnesota, supra, 288 U. S. 697, 720.

It follows, that this matiite must: be evaluated, as to if

‘ its doniititntionality. in the light of the First Amend-

ment, not only without benefit of. any presumption as ae

to its validity, but rather burdened with a presumption

running in the other direction; ‘and mere colorable jus-

-tifications for the legislation will not suffice.

©

"contentions raised i in attempted justification of the sub-

_ ject statute.

These fundamentals established, we now turn to the ;

4

ere a.

oy eel

B: The Attempts to Uphold the Validity of the Act

- Under the First Amendment, Are Devoid of

Merit.

‘Petitioner’s case is: that the State may, in the site

of regulation, - prohibit a given means of communica-"

tion, #.¢., pay teleision to the home. He denies that free

- speech is interfered with at: all; one may-speak or ex-

hibit over television. to his heart’ s content, . he says, SO .

long as no charge for the service is made to the viewer.

; ¢ Pétitioger’ s argument that the state may regulate by

prohibiting a given means of expression strikes at.

the heart of the free speech. guarantees. of. the First

Aimendnient. This approach would lend sanction to the

suppression of FM radio in favor of AM radio or. news-

oO -

papers or. magazinés ; or, conversely, the suppression of _

any of the latter in favor of, other imedia of communi-

cation. : ge

Petitioner very nearly denies that one who, for a

; charge, supplies news om entertainment to the public, is

entitled to the protection of the First Amendment. Un-

der this reasoning, newspapers, magazines, motion pic-

tures and other media operating on a commercial basis

could be made the target for legislation such as that

here under consideration. This argument proves far too

much; it envisages, for instance,’ “fteedom of the press

"as encasjipassing nothing. more than‘ romaway pubji-

cations. :

Thus it is no answer to say - that all: that is pro-

scribed is the making of a charge | for the right of

others to hear or. see the thoughts, ideas or opinions

expressed through the television medium. This approach

palpably evades the true object and effect of. the Act,

which is to suppress the expression of thoughts, ideas ..-

a

at

eal

a

‘—16—

| or beliefs over ‘the medium of pay television entirely. A

similar statute in a related field could fesult insthe sup-

pression of paid circulation newspapers, periodicals or.

motion pictures. Once again the argument proves too

much; it confuses the means of suppression with the

fact of suppression.

With these preliminaries, we pass to a more detailed

~discussion of the points raised in attempted justification

_ Of the statute. —

1, The First Amendment Protects: Both the Means Mand.

the Content of Communications to Others.

_. The initial answer to petitioner’s contentions ‘is: the

proposition that thé right of free speech necessarily

| embodies thé ‘means used for its dissemination, because

the right is worthless in the absence of a meaningful

méthod of its expression. Saia v. New York, ‘supra,

334 U.S. 558; and cf. W ollam v. Palm Springs, 59 Cal.

2d 276, 284. “Suppression of. the means, therefore, i is on

a par with suppression of the content; and in the con;

text of: this case it-is not open to reasonable discussion

“that the Act suppresses both the one and -the other.

And this, be it noted, wholly without reference.to the

‘ content or. manner of transmission or publication of the

suppressed communications. No question ig here raised

ais’ to program content: the definition of “Television

Program” set out in Section 3 of the Act embraces .

both pay and commercially sponsored presentations. No

question is raised; either, as ‘to the manner of trans-

mission or publication : closed or open circuit, precisely _

as ‘commercially sponsored programs are or may be

transmitted. The only objection is that pay television

contemplates the making of a charge, precisely as does

the conventional newspaper ‘or’ movie house..

ow

| a ‘

2.. The First Amendment Protects Not Some, but. All

: Means and Media of Expression.

The apparent thesis of petitioner that suppression of

one means of communication is proper, so long as other

means or media are left undisturbed, simply does not.

. stand scrutiny. The camel may*not thus get»its nose —

under the tent; the guarantees of freedom of expression

may not be whittled away one by one; any infringement —

of these guarantees will be promptly met and dealt with —

as it deserves. Joseph Burstyn, Inc. v. Wilson, supra,

343 U.S. 495: censorship of motion picture; Near v.

nesota, supra, 283 U. S. 697: censors#ip in advance |

of newspaper by injungtion}* Grosjean v. American

Press Co., supra, 297, U.S. 233: discriminatory tax on

newspapers, based on paid circulation; Winters v. New

York; 333 U.S. 507: prohibition against distribution of ”

crime news magazine; Smith v: California,.361 U.S. -

_ 147: possession by bookseller of book not known by

him to be obscepe; fp mah Books, Inc. v. Sullivay,

» supra, 372 U.S. 58: gensorship per “index expurga-

torius” of pocket books; Saia v. New York, supra, 334

U.S. 558: sound truck.

3. The First Amendment Protects Communications Made

~* . in the Course of Commercial Endeavor.

Every case upholding the right of conventional, paid-

circulation: newspapers, books and periodicals and,. as°

well, motion pictures; to freedom of expression and éree-

dom from censorship, particularly in advance; wholly

condemns this statute and repels the attempt to ‘jus-

tify it upon the ground that a charge is made fot pay

television transmissions.* That the guarantees of free-

*“Tt should be remémbered that the pamphlets of rae Paine

were not distributed free of charge.” Murdock v, Pennsylvania,

319 US. 105, 111, é;

a?

Vv .

—18— :

dom of ‘speech and’ of the press extend to all such

media in the business’ field is not even open to debate.

See, ¢.g., Joseph. Burstyn, Inc. v. Wilson, supra, 343

U:S. 495; Near v. Minnesota, supra, 283 U.S. 697;

| Grosjeanv. ‘American Press Co., supra, 297 U.S. 233;

Winters v. New York, supra, 333 U.S. 507; Smith v.

California, supra, 361 U.S. 147, 150; New York Times

v. Sullivan, supra, 376 U.S. 254.

Buystyn met the contention of petitioner in this re-

gard head-on :

“It is urged that motion pictures do not fall

within the First Amendment’ s aegis because their

production, distribution and exhibition is a large-

scale business conducted for private profit. We cari-

not agree. That books, newspapers and magazines

are published and sold for profit does not prevent

them from being a form of expression whose lib-

erty is safeguarded. by the First Amendment. We

_ fat! to see why operation for profit should have

any different effect in thé case of motion pictures.”

( 343 U.S. at 501, 502. > '

“Smith v. C alifornia was equally explicit ;

:‘And it also requires mo elaboration that the

ra ‘eltlcstion and dissemination of books and

_ other forms:of the printed word furnish very famil-

iar applications of these constitutionally protected

’ freedoms. It is of course no matter that.the dis-

semination takes place under commercial ‘auspices.

See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495;

Grosjean v. American Press Co., 297 U.S. 233.

_ Certainly a retail bookseller plays a most signifi-

' cant role in the process of the distribution of

books.” (361 U.S. at 150.)

.

x OO a emt tS Ora at Ba Se

And in’ New York Times. .v.’ Sullivan, supra, it was

said, speaking of a paid advertisement: | |

6é

At. communicated information, expressed

opinion, recited grievances, protested claimed

abuses, and sought financial support on behalf of a» :

‘Movement whose existence and objectives are mat-’. —«

ters of the highest public interest and concern.

Ste N.A.A.C.P." v. Button, 371 °U.S. 415,435.

That the Times was paid for publishing the ad-

vertisement 1s as immaterial in this connection as

is the fact that newspapers and books are sold.

Smith v. California, 361: USS. 147, 150; cf. Ban-

tam Books, Inc. v. Sullivan, supra, 372 U.S. 58,

64, n. 6... -" GBUS at 266.) as

It is thus well settled that those engaged i in ‘the Dusk:

ness of disseminating news, opinions, ‘ideas. or entér- oP

tainment are entitled to the protection of such dissemi- ~

nation under the, First Amendment. Thus the statute

invalidated -in Winters v. New York, supra, 333 U.S.

~ 507, prohibited the sale of books or their possession with _

- Intent to sell. The. Statute invalidated in Near v. Min-

nesota; supra, 283 U.S. 697, interfered with the right

_ to’ sell and. distribute newspapers for profit. And so

with. Bantam Books, Inc. v. Sullivan,’ supra, 372 U.S. |

58, in the case of pocket books. The tax invalidated in.

Grosjean v - American Press Co., supra, 297 U.S. 233,

" was held to have been. aimed at curtailing the commer-

cial distribution of newspapers and, moreover, was.

Measured by the gross receipts from sales. The < opinion |

in Smith v. California, supra, 361 U.S. ‘147, squarely .

upheld the right of a bookseller to have books in his

“possession for purposes of sale. New York Times v.

Sullivan, — ‘376 U.S. 254, upheld the right . to bial

— Ae

.

comment through the medium of paid advertising. It is

thus impossible to separate the throttling of sales from

the resultant throttling of freedom of expression, as our

adversary vainly attempts to do.

4. The First Amendment Protects the Right of the Public

to Listen as Well as the Right of a Given Medium to

Disseminate. Material of General Interest.

fMarsh v, Alabama, 326 U.S. 501, had to do with

the attempted.enforcement, in a ‘“‘company:’ town, of a

state statute making it a crime for anyone to enter or

remain on the premises of another after having been

warned not to do so. Appellant, a Jehovah’s Witness |

engaged in distributing religious literatire, was ar-—

rested under the statute and convicted. The Court: re-

versed. Holding that the protection of the Fi irst Amend-

ment extends to the right to listen as well as the right

to speak, the Court said, — of the people of the

‘ — lente / ve .

. To act as- good Citigens ‘ey must be in-

vide In order to enable them to be properly in-

- formed their information must be uncensored.

~ There is no more reason for depriving these people

of the liberties guaranteed by the iFirst and Four-

teenth Amendments than there is curtailing these

freedoms with respect to any other citizen.” (326

U.S. at 508-509. ) o

‘It thus abundantly appears that the subject Act vio-

lates the First and Fourteenth Amendments in two dif-

ferent but interrelated aspeets: it prohibits both the dis-

semination to and reception by the public of material

of general interest. | ;

—21—

5. The Act Evidences, Not a Valid Attempt to “Regu-

late” a Business, but Rather an Attempt to Suppress a , ts

Qualified Medium ‘for the Dissemination of News,

Views and Entertainment.

' Here, as in Near v, Minnesota, supra, 283 U.S. 697.-

Fil: 712, the Court is entitled to look at realities; and

here, as there, the object of the statute is suppression

of the offending media, which “suppression is* accom-

plished by” the terms of the statute; arid, most im-

portant of all, here, as there, “restraint is the object and

purpose of the statute.” ;

_ These. principles lead to the destruction of two basic

propositions advanced by our adversary. “These are,

first, that bécause -commercial disseminators of. news -

and other matters are subject to police power regula-~

- tions as to their’ business affairs, . this somehow gives

the State of California a license to suppress free speech

by a statute having that object and purpose. C f., Near v.

Minnesota, supra, 283 U.S. at 708. ‘

The Federal Communications Commission of course

has power to grant, revoke and suspend licenses for .

over-the-air transmission. This is a matter of regulation

of a business: no more and no less. But neither the

Federal Communications Commission, nor Congress nor

any.state has the power, wholly unrelated ‘to regula-

tion of business _qua business, to dictate what a’ news-

' paper or a broadcasting station shall say in the way of

news, opinion, or entertainment, or how it shall Say it. -

or least of all, prevent it from saying it at all. In other

words, appropriate authority may regulate, it may tax,

but it may not in the guise of either suppress news or

other dissemination to the public merely for suppres- .

¢ s sake alone.

*

g

*

io

-Mr:~ Justice” Sutherland exposed a similar ~ ‘fhasquer= 51

ade when he ‘said, speaking for the Court in Grosjean

v. om" Press Co., supra, 297 U.S. 233:

it takes money from the pockets of the appellees.

_ If that were all, a wholly different question would

be presented. It is bad because, in the light of its

history and of its present setting, it is seen to be a

deliberate and calculated device in the guise of a.

tax to limit the circulation of information to which

the public is entitled in virtue of the constitutional

guaranties. A free press stands as one of the great

interpreters between, the government and _ the

people. To allow it to be fettered 1s to — our-

selves.” (297 U. S. at 250.) .

00 here, the short answer is that regulation as ‘regula-

tion of business may be one thing, but suppression as

. suppression is something else entirely and as such con-

demned ~~ the First Amendment.

Breard v: Alexandria, supra, 341 US. 622" is. re- *

lied upon by petitioner in this connection.’ That case 5

sustained, as against First Amendment attack, a local

ordinance prohibiting, and denominating a nuisance,

door-to-dopr’ solicitations for magazine subscriptions

without consent of the home owner.. The court held, so

far as free speech is concerned; that the great guaran-

tees of free speech do not extend to forcing a community

to admit the solicitors of publications to the home prem-

ises of its residents. The rationale of the decision was

that door-to-door solicitation might properly be con-

sidered as a nuisance not involving utterances subject

to protection (the magazines, when ‘they arrived, con-

tained those) and hence subject to reasonable regulation.

_. The tax here involved is bad not because —

&

j ae :

ee ene et

?

Sen Ane neh DRA aD ia OR ANON smth

—23—

RAE SAE _ Here, of course, pay television i is an invitee in and to

the home, ‘not a doorbell ringing nuisance. Pay televi- -

-. “ sion makes its: appearance only if and when the hoyse-

holder so elects.* And here, the suppression is aimed

directly at the utterance: the dissemination itself.

_ Breard would, we apprehend, have resulted in quite. a

different holding’ had the ordinance in question barred

the delivery to, or reception of, magazines previously.

subscribed for to the home which, in essence, is‘the case . ‘

here. If it is of any aid whatever in, the instant case.

Breard, by contrast, aptly illustrates the wholesale in-

vasion of free speech perpetrated by the subject Act.

c f. Marsh v. Alabama, supra, 326 U.S. . 501.

- Associated Press v. United Si tates, 326 U.S. 1, with

_its, advocacy. of “the widest possible dissemination of |

information from diverse and antagonistic sources”

(326 U.S. at 20) also is of ‘more aid in: illustrating: .

the vites of the subject Act than in demonstrating its

* nonexistent virtues.

‘Clearly, the attempt to masquerade suppression ih the |

guise of regulation will not do. Our adversary might-as

wéll argue that a ‘statute prohibiting the sale of news-

papers in the State of California wont, not transcend

free speech limitations.

6. The Suppression of Freedom of Speech and of Expres-

sion Implicit in the Act Is Wholly Without reaming

tion or Excuse. ,

Petitioner’s contention that the test here applicable is |

_the so-called ad hoc balancing test rather than the

clear and present danger test is wholly refuted by the.

*It will be recalled that ica was arrested solely because he

had not obtajned the ‘coment of ” homeowners involved. (341

U.S. at 624.)

me

_ holdings in each and all of the cases earlier cited here- ©

in where the restraint or suppression was, as here, di-

- yect: and imposed in advance. See, e.g., Near v. Minne-

- sta, “supra, 283 U.S. 697; Joseph Burstyn v. Wilson,

supra, 343 U.S. 495; Winters v. New York, supra, 333°

U.S. 507; and Bantam Books, Inc: v. Sullivan, supra, °°

372 U.S. 58.

Casés dealing with indirect or peripheral restraints,

calling for the ad hoc balancing of the public interests

involved, are therefore of no value here. Breard v.

Alexandria, supra, 341 U.S. 622, cited, as earlier noted,

by. petitioner, is as good an example as any of the ap-

plication of the balancing test..There was involved in

that case, not the direct suppression of theWgale of the

periodicals involved—which is, in essentials, our case—

but. rather the conduct of the salesmen in trespassing

' upon private property against the will and without the

> consent of the property owner. As earlier pointed out,

had Alexandria attempted to bar the sale or distribu-

tion of periodicals within its borders—which again, in

_ essentials, is what California has purported to do here

_—the suppression would have been direct, ds it is here

and as it ‘was, for instance, in Marsh v. Alabama,

- supra, 326 U.S, 501.

_ For the rest, the opinion of the California Supreme

Court adequately. points out the flimsiness of the jus-

‘tifications advanced by the statute itself, § 2, as an ex-

_ cuse for. its existence; and the opinion also correctly

points-out the overbreadth of the Act even if ctedence

be given to the speculative and illusory reasons advanced

by it for its existence. ‘Petition, Appendix B, 26-28;

cf. Shelton v. Tucker, 364 U.S. 479, 488.

The result is that even if the ad hoc balancing test;

rather than the clear ant f present danger criterion, were

_"

° e

%

—25—.

to be applied in the present ‘case, the Act would still ©

' be found wanting. As earlier noted, due to its direct and °

prior restraints of expression, the. statute comes before -

this Court bearing a heavy presumption against its va-

lidity. And every cage which we have earlier cited here-

in as bearing upon such restraints attests that such

presumption is here not only not dispelled, it is _for- :

tified, under any test. \ Pits

It is therefore respectfully suggested that, as to the

merits, the California Supreme Court acted wholly in

*accord with applicable decisions of this Court in -hold- .

ing the Act invalid as a flagrant attempt to transgress

the freedoms of speech and of the: press guaranteed

by the First Amendment.

ae | Conclusion. , , ect ay?

For all the reasons hereinabove given, this amicus

curiae respectfully suggests that the decision of the

Supreme’ Court of California rests ‘upon the ‘adequate

and independent nonfederal groyind that the subject Act

is violative of the guarantees of free ‘speech contained

in the California Constitution; that in any event the

holding of that court as to the invalidity, of the Act

under the First’ and Fourteenth Amendments is wholly

in accord. with applicable decisions of this. Court; and’

that, accordingly, certiorari should be denied. 7

» Respectfully submitted,

Pierce: Works,

‘Warren M. CurisTopHer,

Attorneys - for International Telemeter

Corporation, Amicus Curiae in Sup->%

port of Position of Respondent. q :

O’MELvEny & Myers, |

. Of Counsel: | | {