# Amicus Curiae Brief — Jordan v. Weaver > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1646%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1966 - **Citation:** 385 U.S. 844 ## Text rv pe i ie eee = S Yi ; A ; SUBJECT INDEX © oa . pe Page 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: e 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 . —2— ae 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 @ oO a) gS e. 11° Merits. a - 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 ae - ¢ . By SP EROUEN PERLE ETS ao ° | P } - 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. _ & 4 lie, ees 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, é ew eee — _— XA ; a * 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 ( ™ . e Je: . 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. % ; 1 li 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 | a + « 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 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: | | { --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1646%3A4. Public record. Not legal advice.