Amicus Curiae Brief — Golden v. Zwickler

Supreme Court brief1969

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TABLE’ OF CONTENTS

INTEREST OF THE AMicus ..0.....2..0c0c:cccccceeeoes eee

' §TaTEMENT OF THE CASE ...... Bae hoatror pessvnnionns OO OO

' Srarute LyNvouvep ................ SI Pad a Rare er ots boar i

THE QUESTION PRESENTED ....0..0..0.::::c:::eeseseeeeees NEST

enna at Mc cousnateneenareabqueniases os

ARGUMENT

Porxt I—The statute challenged here minst be

tested against the preferred positign given to .

freedom of speech under the Constitution ........

' Pomvt IIl—-The prohibition of anonymity contained

in the New York statute places a. substantial

restraint on freedom of expression ...............-.-.

The Place of Anonymity in ‘a Democratic -

ociety oui. cecsecsecnecieoeecsesssseeneesen bomen

Anonymity as an Aid to Free Expression

Political PrIWAGy .2-..-:0:scecscecciscoisssssecssenqoosesees

Protection of Unpopular Opinion ...............

Port I1]—The interest of the State in the pro-

scription of anonymity does not justify the de-

terrent effect upon freedom of expression and

the interference with political privacy imposed

by the New York statute ................ an ee

ID i icsticepttcinstons fare ondternesveseeeres Fas yt i eae

II -

4 P ; &

TABLE OF AUTHORITIES

PAGE -

Decisions: . . ae ;

Abrams v. United States, 250 U. S. 616 (1919)-........... 15

Aptheker v. Secretary of State, 378 U..S. 500 (1964) 19.

Barenblatt @ United States, 79 S. Ct. 1081 (1959) ..... 18

Breard v. Alexandria, 341 U. S..622 (1951) ........... ick 8

Canon v. Justice Court, 393 P. 2d 428 (1964) 00... 20

" Cantwell v. Connecticut, 310 U. S. 296 oc, eee

DeGregory v. Attorney General of New Hampshire,

383 U. 8. 825 (2508) Bri leapt ewe NEN UNO ODAGr embers 14°

Gibson v. Florida Legislative Investigating Com., 372

U. 8, 589 (1968) on rniewrsinenrnntnennsn ioe 7

Sinilhines v. Peni, 318 U. S. 413 (1943) a ore ees 7

Kovacs v. Coéper, 386 U. S. 77 (1949) . ee eees

Lovell v. Griffin, 03-U. 8. 444. (1988) os a

(>)

“Martin v. Struthers, 319 U. 8. 141 (1948) coco

Mills v. Alabama, 384 U. S. 214 (1966) ooo. sinoones

; National Association for the Advancement of Colored

People v. Alabama, 357 U.S. 449 (1958) ......8, 14, 15, 17

Prince v. Massachusetts, 321°U. S. 158 (1944) ......... =

~ Schneider v. Irvington, 308 U. S. 147 (1939) ........7, 8, 17, 20

Sweezy v. New Hampshire, 354 U. S. 234 (1957) ........ 14

Talley v. California, 362 U. S. 60 (1960) ............ ..11, 15, 17, 19

Thomas v. Collins, 323 U. S. 516 (1945) 0... 8

Thornhill v. Alabama, 310 U. S. 88 _— ERT AER 7,19

III

: n ; PAGE

' United States v: Scott, 195 F. Supp. 440 (D.C., N.

- Dak., N.D., 1961) ...........:..-. ee ie ©

Watkins v, United States, 354 U. S. 178 (1957) .......... : 18

Zwickléxv. Koota, 261-F. Supp. 985, rev'd, 389 U.S.

241 aid SAREE. Ssadeasasdusagacicndneslatanetnonanwnsbanieh 683

Statutes: :

New York Election Law, Sections 457, 458 ........0.000+ 2, 3, 5-

18 U.S.C., See. are SARC R RARS CML Th Ne 16, 19

Miscellaneous:

Blankenship, ed., How to Conduct Consumer and

Opinion Research (1946) Beas eR etry meron . 122

Bleyer, Main Currents in the History. " American.

Journalism (1927) 0.2.2.0... Sh ikceamiaior ns 9

Cantril, Gauging Public Opinion RI seca ane 12

Defoe, Shortest Way with the Dissenters .................-. 9

The Federalist, Henry Holt Edition (1898) ............+. 10

The Federalist, Modern Library Edition (1987) ........ 10

Foreign Affairs, Vol. 25, Nos. 1 & 4, Vol. 27, No. 2,

Vol. 36,.No. 1 .......,...:.., ee aenaiiees seca isea dara ckasa 11

Minto, Daniel Defoe ED pscsssaiopsccnnnsnntes Ear we eetone 9

National Opinion Research Center, Interviewing - for .

NORC (1945) SARS See One ene ee rr i

Taylor, How To Conduct. A Successful Employees’

Suggestion System 0.0... ccc tei 13

Westin, Alan F,, Privacy and Freedom a (1967) Di ceeiaeal 10, 13

“IN THE

Seoninn Court of the United States

October Term, 1968

- No. 370

tl ee

Euuiorr GOLDEN, as Acting District Attorney of the.

County of Kings,

iain,

vs.

SanForp ZWICKLER, —

Pras Appellee.

On Appeal from the United States District Court for the

Eastern District of New York

BRIEF OF THE AMERICAN JEWISH

CONGRESS, AMICUS CURIAE

Interest of the Amicus

The American Jewish Congress, a national organiza-

~ tion founded in 1918, is a voluntary association of Amer-~

“ican Jews committed by its constitution to the dual and,

for us, inseparable purposes of defending and ‘extending

democracy and preserving our Jewish heritage and its

2 .

values. We are convinced that the surest way to preserve

our nation and our democracy is to’ guard jealously the

liberties secured by our constitution and Bill of Rights and

to oppose any infringements upon those liberties not clearly

.necessitated by overriding interests.

» Freedom of speech and freedom of the press are liber-

ties that are basic to the maintenance and development

of our democratic way of life. Punishment for the distribu-

tion of anonymous leaflets, which thereby inhibits the ex-

pression .of id¢as, is an encroachment on these essential

freedoms. Believing that the statute involved in this case —

constitutes an infringement upon American liberties that

cannot be, justified as clearly necessitated by an overriding ©

interest, we submit this brief amicus curtae with the con-

sent of the parties. |

Statement of the Case

This case arises from the judgment and order of a three-

judge court of the United States District Court for the

Eastern District of New York, entered on June 18, 1968,

declaring §457 of the New York, State Election Law to be |

unconstitutional and enjoining enforcement by the appel-

lant. The statute prohibits the printing or distribution in

quantity of anonymous political literature in connection

with an election. |

—_ was convicted in 1965 of violating New York -

Penal Law §781- b (new Election Law §457) by distributing ©

handbills mildly critical of a speech delivered on the floor |

of the House of Representatives by a United States Con-

3 ~

gressman standing for reelection’ at the: time’ of the dis-

tribution, 1964. His conviction was reversed on April 23,

1965 by the Appellate Term of the New York Supreme

Court on state grounds without reaching the constitutional

question. On December 1, 1965 the New York Court of

Appeals affirmed without opinion. |

On April 22, 1966, appellee invoked the Federal District

Court’s jurisdiction under the Civil Rights Act, 28 U.S.C.

§1343, and the Declaratory Judgment Act, 28 U.S.C. §2201,

seeking a declaration that §781-b is unconstitutional and.

an injunction against its enforcement. Appellee’s motion

-for a three-judge court was granted on May 20, 1966 but

his complaint was dismissed by that court on September 29,

1966 on the ground that, under the abstention doctrine, the

matter should first. be considered by the state ‘courts.

Zwickler v. Koota, 261 F. Supp. 985. This Court, on Decem-

ber 5, 1967, reversed and remanded the case to the District

Court. Zwickler v. Koota, 389 U. 8. 241.

On May 6, 1968, the District Court rendered its decision,

declaring the New York statute invalid and decreeing in-

junctive relief to implement the declaration of invalidity

(A. 29-57).

Statute Involved

New York Election Law, Sections 457 and 458, read as

follows: - ;

§457. Printing or other reproduction

of certain political literature

‘No person shall print, publish, reproduce or dis-

tribute in quantity, nor order to be printed, published,

o 4

_ reproduced or distributed by any method any handbill,

; pamphlet, circular, post card, placard or letter for

another, which contains any. statement, notice, informa-

tion, allegation or other material concerning any polit-

. ileal party, candidate, committee, person, proposition

or amendment to the state constitution, whether in

‘favor of or against a political party, candidate, com- —

mittee, person, proposition or amendment to the state

constitution, in connection with any election of public

Officers, party officials, candidates for nomination for

_ public office, party position, proposition or amendment

to the state constitution without also printing or re-

producing thereon legibly and in the English language

the name and post-office address of the printer thereof

and of the person or committee at whose instance or

request. such handbill, pamphlet, circular, post card,

placard or letter is so printed, published, reproduced

or distributed, and of the’ person who ordered such

printing, publishing, reproduction or distribution, and —

no person nor committee shall so ‘print, publish, re-

produce or distribute or order to be printed, published,

reproduced or distributed any such handbill, pamphlet,

circular, post card, placard or letter without also print- -

ing, publishing, or reproducing his or its name and

post-office address thereon. A violation of the provi-

sions of this section shall constitute a4 misdemeanor.

The term ‘‘printer’’ as used-in this section means

the principal who or which by independent contractual . °

relationship is responsible directly to the person or

committee at whose instance or request a handbill,

_. pamphlet, circular, post: ecard, placard or letter is’

printed, published, reproduced or distributed by such’

' principal, and does not include a person working for

. or employed by such a principal, : ;

§458. Penalty

Any person convicted of a misdemeanor under this

article shall for a first offense be punished by imprison-

ment for not more than one year, or by a fine of not

less than one hundred dollars nor more than five hun-

dred dollars, or by both such fine and imprisonment.

Any person: convicted of a misdemeanor under this

article for a second or subsequent offense shall be

guilty of a felony.

The Question Presented |

‘The question to which this brief is addressed is whether

a statute making punishable the printing or distribution

_ in quantity of anonymous political literature in connection. —

with an election abridges freedom of speech and press as

protected by the First and Fourteenth Amendments.

Summary of Argument

I. The ‘statute challenged here places a restraint on

freedom of the press, a right protected by the First Amend-

ment. Consequently, it must be tested against the preferred

position given to fréedom of ‘expression under the con-

stitution. The supporting interest of the state must be

compelling.. aes

II. A prohibition of anonymity effectively restrains

freedom of expression. Anonymity has an accepted and

proper place in a democratic society. History as well as:

current practices establish the inhibiting effect on the free

expression of ideas of a requirement that the speaker

reveal his name.

The protections of the constitution are particularly es-

‘ ° .sential to the expression of unpopular opinion. But even

in the absence of evidence that any particular expression

"is so unpopular as to subject the speaker or publisher to.

reprisals, the requirement of exposure must be regarded

as having a strong tendency to discourage the appearance

of new ideas.

IIT. No compelling interest of the state justifies the

restraints imposed by the statute. The denial of anonymity

is not a proper end in itself. The statute is not narrowly

drawn for the purpose of inhibiting defamation or prevent-

ing the disruption of the election process.

ARGUMENT

POINT I

The statute challenged here must be tested against

the preferred position given to freedom of speech

under the Constitution.

. The* statute here challenged plainly places a restraint

on the exercise of a right protected ‘by the First Amend-

ment, as made applicable to the states by the: Fourteenth.

It is an express limitation on the distribution of political

literature dealing with candidates or propositions in an

. lection. Thus it curbs an activity lying at the core of the

political process. As this Court said in Mills v. Alabama,

384 U. S. 214, 218-9 (1966) : z \

_* . Whatever differences may’ exist about interpreta-

tions of the First Amendment, there is practically

universal agreement that a major purpose of that

Amendment was to protect the’ free discussion ‘of

governmental affairs. This of course includes dis-

cussions of candidates, structures and forms of govern-

ment, the manner in which government is operated, and

all-such: matters relating to political processes.

Distribution of ‘“shand-bills”” or leaflets is a classic

mode of exercising freedom of speech and this Court has

given full protection to these ‘‘historic.weapons.in the de-

fense of liberty * * *’’ Lovell v. Griffin, 303 U. S. 444, 452

(1938); Schneider v. Irvington, 308 U. S. 147 (1939);

_ Jamison v: Texas, 318 U. S. 413 (1943). The restraint im-

posed by the statute is avoided if the person exercising his

constitutional right by printing or distributing such polit-

ical literature places his name and address on what he

distributes and the name and address of the person at

whose instance he acts. If he does not do so, he is entirely

barred from using this method of airing his views. The

- question, therefore, is whether this restraint on a form of

. expression is consistent with constitutional requirements.

We are dealing here with limitations on the manner of

expression, as distinguished from limitations on the content °

of what may be said. Where such limitations are designed

to achieve’ a proper governmental purpose, such as the

" health, comfort or privacy of the public or their protection

against fraud and other misconduct, the courts must de-

términe whether the restraint is so essential to achieve-

ment of a proper purpose that the curtailment of a con- |

stitutional right is justified. See, e.g., Schneider v. Irving-

ton, supra; Thornhill v. Alabama, 310 U. S. 88 (1940) ;

Cantwell v. Connecticut, 310 U. S. 296 (1940); Martin v..

Struthers, 319 U. S. 141 (1943); Prince v. Massachusetts,

321 U. S. 158 (1944); Kovacs v. Cooper, 336 U. 8.77 (1949) ;

Breard vy. Alexandria, 341 U.S. 622 (1951).

Where, as liere, an attempt is made to limit freedom of

expression, the ‘‘usual presumption supporting legisla-

tion is balanced by the preferred place given in our scheme

to the great, the indispensable democratic freedoms secured

by the First Amendment.’’ Thomas ¥. Collins, 323 U. 8.

516, 530 (1945). The right asserted by the appellee is

among ‘‘those liberties of the individual which history has

attested as the indispensable conditions of an open as

against a closed society [and which therefore] come to this’

-Court with a momentum for respect lacking when appeal is

made to liberties which derive merely from shifting

economic arrargéments.’’ Justice Frankfurter, concur-

ring in Kovacs v. Cooper, supra, at 95. Freedom of the

press lies ‘‘at the foundation of free govérnment by free

men, * * * In every case, therefore, where legislative

abridgment of the rights is asserted, the courts should be

astute to examine the effect of ‘the challenged legislation.

Mere legislative preferences or beliefs respecting, matters

of public’ convenience may well,support regulation directed

at other personal activities, but be insufficient to justify

such as diminishes the exercise of rights so vital to the

“maintenance of democratic institutions. ’’ Schneider vv.

a supra, 308 U. S. at 161.

As this Court has said of the related First Amendment .

freedom of association, curtailments must be ‘‘subject to

the closestscrutiny’’ and the ‘‘subordinating interest of

the Sfate must be compelling.’’ National Association for ©

the Advancement of Colored People v. , Alabama, 357 U.S.

449, 461 (1958).

_. POINT II

-The prohibition of anonymity contained in the

New York statute places a substantial restraint on

fréedom of expression.

Freedom to speak and write without restraint on polit-

‘jeal matters is or may be inhibited by a law that bars all °

anonymous expression in the form of leaflets’ This con-

_ tention is amply supported by the history of political writ-

ing in this country. °

A. The Place of Anonymity in a Democratic Society

To begin with, it should be recognized. that there is

nothing inherently wrong in desiring to keep one’s name

from the public. Anonymity may serve important social

objectives. The cause of civilized progress was greatly

benefited by the fact that Daniel Defoe could publish anony-

mously' his Shortest Way with the Dissenters,‘ and it was

correspondingly greatly harmed when Defoe’s identity was -

discovered and he was fined and pilloried for his offense

(Minto, Daniel Defoe (1909), pp. 38-40).

In this country, even before the founding of ‘our-Repub-

lic, the practice of speaking anonymously on social and

political matters was accepted as normal and proper. ‘Ben-

jamin Franklin signed his first pieces for the New England

Courant as ‘‘Silence Dogwood’’, (Bleyer, Main Currents

in the History of American'Journalism (1927), pp. 56-57).

The use of names like ‘‘Philanthrop,”’ ‘‘Humarius”’ and

‘‘Cato’’ as signatures on articles on public affairs was

widespread (Id., pp. 43-100). In 1775, Thomas Paine used

weloe.

Khon

the signature “ Humanus’” in an article for the Pennsylva-

' nia Journal; after Rev. William Smith, president of the

University of Philadelphia, used the name ‘‘Cato’’ in at-

tacking Paine’s Common Sense, Paine replied under the

name of ‘‘Forester’’ (Id., p. 91). The New Hampshire and

Vermont Journal or Farmers Weekly Museum regularly

published articles i in the 1790’s written by such persons as |

“The Lay Preacher,”’ ‘‘Peter Pencil,’’ ‘‘Simon Spunkey,’’

. “Peter Pendulum” and ‘‘The Pedlar’’ ee p. 128).

The ‘ones famous of all ‘deen political writings, .

The Federalist, written by Alexander Hamilton, James

, Madison and John Jay, was published anonymously. ‘Tn-

~ deed, the attribution of several of the essays is still in

. doubt. .As Professor Earle points out (The Federalist,

Modern Library Edition (1937), Introduction, p. ix), dur-

“tng the controversy over the endorsement of the Constitu-

tion, ‘The press of the day was. ——— with contribu- —

tions from anonymous citizens.’ Among those anony-

_ George Clinton, who wrote under the name of: “Cato”?

\, (see the intr oduction by Paul Leicester Ford to thé eomid

Holt edition of The Federalist rs PP. —_—

"Thus, in the early days of our “Républie, persons ‘whio

tain their anonymity i in ‘ent si aie —: and _—

ical documents.”

“

1. See also Westin, Alan. F., viwacy and Freedom (1967), p

331, Professor. Westin. notes that the First Amendment broke with

“the principle of seventeenthaentury English licensing laws, which - ,

~had required books. and pemgaets” to bear the name of the author

f ron printer.” cae

‘ _ mously opposing ratification was New York’s Governor |

s, : were or were to become President of the United States,

. | Chief Justice of the-Supreme Court, Secretary of the Treas:

Bs » ury and Governor of New York did not hesitate to main-

This practice is still used by public officials. Foreign

Affairs, the United States’ most influential periodical deal-

ing with international policy, has frequently i in recent years»

masked the names of its contributors, carrying leading

articles signed simply by single initials, including the

famous ‘‘X’’ article, ‘‘The Sources of Soviet Conduct,”’

which set forth the Goyernment’s policy: towards the Soviet

Union (Foreign. Affairs, _ Vol. 25, Nos. 1 & 4, Vol. 27, No. 2,

Vol. 36, No. 1).

As this Coit concluded in Talley v. Calijornia, 362

U.S. 60, 65 (1960) :

It is plain that anonymity has ‘sometimes been as- a

sumed for the most constructive purposes.

ail

B. Anonymity as an Aid to Free Expression

Appellant: suggests that anonymity is necessary, or

desirable, only ‘‘in an atmosphere of repression’’ (Brief,

' p. 29).- However, the debate on the Constitution, to which :

the anonymous papers in The Federalist contributed, was

‘not conducted in such an atmosphere. Moreover, there is

ample evidence that: denial of anonymity has an inhibiting

‘effect even in today’s open society.

‘Public opinion researchers accept the fact that .some

persons will hesitate to express themselves freely and

honestly if they. think that there is a chance that their

names will ultimately be associated with the answers they

give. In Interviewing for NORC (1945), the National

Opinion Research Center, which has conducted surveys for

| many government agencies, advised its employees (Pp. 15):

ald ; ory

_ A few persons may be reluctant to talk if they feel

their names will be taken. You can explain that, NORC

never wants the name of anyone who doesn ’t want us .

to have it.

That the loss of anonymity can have.a serious effect

on free exercise of opinion is recognized.in the book, How

to Conduct Consumer and Opinion Research, pilin,

‘ed. (1946). The essay on ‘‘Measurement of Employees’

Attitude and’ Morale’’ advises employers to place (pp.

223-4)

* * * emphasis on the point that the questionnaires

‘ must not be signed; that no one in the company will

have access to the answered questionnaires, that- there

is no means of identifying a particular person’s blank.

All of the mechanics of distributing the questionnaire

- forms and the’ placing of the answered forms in the

ballot box are such as to guarantee anonymity to the

employee.

In the same book, the essay on ‘‘Trends in Public Opin-

‘ion Research’’ describes conclusions drawn by the Office of

Public Opinion Research from a comparison of question-

naires answered secretly with others answered by persons

who were told that their identity would be known (p. 298) :

Experiments with secrét ballots as compared with

oral. interviews have shown that respondents are not

always frank in stating their opinions. An unpopular

opinion or one that reflects in any way upon the

prestige of the respondent often gets a higher rating

in the secret ballot than 1 in oral replies.’

2. The original experiments are reported in detail in Cantril,

leith Public Opinion (1944), Chap. V.

In employees’ suggestion programs, likewise, it is com-

mon practice to set up a system in which the person making

the suggestion does not identify himself but receives a

numbered receipt from which he may be ‘identified after

the suggestion has been considered. In How To Conduct A

Successful. Employees’ Suggestion. System (p. 9), Ezra S. |

Taylor rates anonymity as the most important condition

_ for successful suggestion systems.

There are other ways in which modern society recognizes }

anonymity as a valuable aid in assuring free expression of

opinion. It is standard practice for newspapers to print

letters:signed with initials or fictitious names. While the

editors require that the writer disclése his name ‘to them,

they recognize that a freer expression of opinion can be

achieved if they do not require jpublic exposure of the

writer’s identity. a

Underlying all these practices, anonymous polls, letters

to the editors and the like, is the well-founded belief that

anonymity in the expression of views contributes to the

free play of ideas and hence to the ultimate search for

- truth, the same search for truth that the founding fathers -

sought to foster by the guarantees of the First Amend-

ment. As Professor Westin put it:* _ :

Just as a social balance favoring disclosure and

surveillance over privacy is a functional necessity for

totalitarian systems, so a balance that ensures strong

citadels of individual and group privacy and limits

both disclosure and surveillance is a prerequisite of

liberal democratic societies. The democratic society

relies on publicity as a control on government, and on

privacy as a shield for group and individual life.

3. Op. cit. supra, p. 24.

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C. Political Privacy

The value of anonymity, as a’guarantee of freedom, is

recognized most clearly in the rules governing the act that.

symbolizes our democracy—the election of public officers.

It is not too much to say that the degree of freedom that .

prevails in a country’s election is the-surest test of the

liberty of its citizens. As Justice Frankfurter pointed

out; concurring in Sweezy v. New Hampshire, 354 U.S. 234,

266 (1957): ,

In the political realm as in the academic, thought

and action are.presumptively immune from inquisition

by political authority . It cannot require argument that

inquiry would be barred to ascertain whether a citizen

had voted for one or the other of the two major parties

either in a state or national election. Until recently, no

difference would have been entertained in regard to

inquiries about a \oter’s affiliations with one of the.

various so-called third parties that have had their day, _

or longer, in our political history.

This right of ‘‘political privacy?’ (id. at 267) deserves pro-

tection whether exercised through major parties, through .

minor parties as in Sweezy or in DeGregory v. Attorney

General of New Hampshire, 383 U. S. 825, 828-9 (1966), .

through organizations as in NAACP v. Alabama, 357 U. 8S.

449 (1958), or as in the present case, by an individual

voicing criticism of a candidate for public office.

D. Protection of Unpopular Opinion

The mantle of protection that the Constitution throws

over the right to hold and espouse political, religious and

other views is designed primarily for those who adhere to

unpopular causes, those who advance the ‘‘opinions we

loath’? (Justice Holmes, dissenting in Abrams v. United —

States, 250 U. S. 616, 630 (1919) ).” Hence, when ‘basic

guarantees of the. First Amendment are asserted, they -

must be interpreted in a manner that insures protection to -

the advocate of unpopular causes—the advocate who stands

to‘be injured most by enforced disclosure of his identity.

This, we believe, is the principal thrust of this Court’s

decision in NAACP v. Alabama, supra. This Court was

there concerned with the protection of those who hold ‘‘dis-

sident beliefs’’ (357 U. S. at 462). Although the case in-’

volved exposure of organized activity, the reasoning ap-

plied equally to individual expression. Indeed, this Court

expressly noted that, in asserting the right of anonymity, |

the Association ‘‘argues more appropriately the rights of

its members”’ (Id. at -- ;

The NAACP case established the sista of giving

the full protection of the First Amendment guarantees to

organized groups which may face hostility from the rest

of the community. It is even more important, we believe,

to protect the individual speaker against the inhibiting ef-

fect of exposure. It is with the single advocate of an idea

that all movements begin. And it is while the idea is held

only by one or a few persons that anonymity may make the

difference between survival or immediate extinction. |

In Talley v. California, 362 U. S. 60, 64 (1960), this

Court concluded that there ‘‘can be-no doubt that such an

identification requirement would tend to réstrict freedom

to distribute information ‘and thereby freedom of expres-

sion.’? We submit that the statute here challenged has, as

3) 16

‘well, an unquestionably inhibiting effect on freedom of ex-

pression.

Appellant urges.that there was no need for anonymity

in the circumstances out of which this case grew—that any

fear of reprisal on the part of appellee would have been ~

; | “fanciful”? (Brief, p. 30). However, that is not for ap-

= pellant, representing the state, to say.. Whether one re-

jective judgment that only the individual can make. | If the

state were allowed to take over that role, the whole ‘purpose

of protecting anonymity when it is needed (and appellant

concedes it is sometimes needed (Brief, p. 31)) would be

‘ ._ thwarted. | . ;

Thus, it is irrelevant whether the views distributed by

Zwickler would have been well received by the group to

which they were addressed on even whetlir, objectively

viewed, anonymity was necessary. The Bill of Rights is

designed to prevent the feeble spark of the untried idea

from -being quenched by a flood of hostile majority opin-

ion. The Speaker should not be required to judge, each

time, whether such a flood .will occur or whether a court

may so decide. As the court below observed, where First

a Amendment freedoms are involved, the threat of a ‘‘penal

restraint on utterances blights those freedoms by its very

presence”’ (A. 32). << -

It is on this point, -we an" that the District Court.

went astray in United States v. Scott, 195 F. Supp. 440

(D.C., N.Dak., N.D., 1961), relied on by Appellant (Brief,

p. 15). The court there upheld the Federal anti-anonymity ~

law, 18 U.S.C. Sec. 612, which prohibits publication of

anonymous statements about candidates for - Federal of-

fice. In upholding the statute, the court relied. on its con-

clusion that the defendant’s claim that he might he subject

to reprisals was highly speculative. It said (at 443): ‘‘the

mere possibility of reprisal is not enough.’’

It does not appear, however, that this Court rested its

decision in the NAACP or Talley cases on evidence of

threats of reprisals or pressure. Thus, the NAACP case

stands for the broad principle that.‘‘compelled disclosure

of affiliation: ‘with groups engaged in advocacy may con-

stitute . . . a restraint on freedgm of ‘association . . .”’

(357 U.S. at 462). In the Talley case, there is no evidence -

of any kind of the likelihood of reprisal. It was held to be-

enough that the identification requirement: would tend to

restrict freedom of expression. Similarly, in Gibson v.

Florida Legislative Investigating Com., 372 U. 8S. 539

- (1963), this Court protected the anonymity of the members.

-of an association without any a of the possibility

of reprisal.

POINT III

The interest of the State in the proscription’ of

anonymity does not justify the deterrent effect upon

freedom of expression and the interference with polit-

ical privacy imposed by the New York statute. .

Although there are reasons why disclosure of the sources

of political literature may be desired in the context of an

election campaign, it is‘: necessary to weigh the interests of

--the State to ascertain whether such ‘interests justify the

deterrent effect upon freedom of expression. Schneider v.

State hs New Jersey, supra..

A. Denial of anonymity is not a proper end in itself. |

_In. Watkins v. United States, 354 U. S. 178, 187 (1957), this

Court said: ‘“There is no general authority to expose the

private affairs of individuals without justification in terms *

of the function of Congress.’’ ‘This concept was reiterated

in Barenblatt v. United — 360 U. S. 109, 127 (1959),

where this Court said: . Congress may not constitu-

tionally require an ‘individual to disclose his political rela-

tionships or other private affairs except in relation to such

a [valid legislative] purpose.’”?” We submit that it is

equally true that state and local governments have no-

power to compel exposure without justification in terms of

their own function. Exposure does not justify itself, par- ;

ticularly where its effect restrains freedom of expression.

B. Neither is it appropriate,-as Appellant contends .

(Brief, p. 15), for the State to decide that it must prohibit

anonymity in order to enable readers to judge the motives

‘and good faith of the writer. The anonymous writer pays *

a price for whatever advantage he gains by concealing his

name. Most if not.all his readers will count his secrecy

against him in weighing what they read. On the other

hand, it can be argued that anonymity contributes to ra-.

‘tional appraisal of arguments since it reduces the element

of personal bias. These and other competing factors are

part of the free competition of ideas which the State may

not constitutionally disturb by tilting the scales. e

C. It is sometimes argued that statutes such as the on®

here involved serve to inhibit defamation by exposing the

writer to legal action he might otherwise escape. This jus-

ad :

tification must be tested against the principle that legisla-

tion limiting expression must be ‘‘narrowly drawn to cover

the precise situation giving rise to the danger.’’ Thornhill

‘vy. Alabama, 310 U. S. 88, 105 (1940). See also Aptheker v.

Secretary of State,-378 U. 8. 500, 508 (1964), and cases

‘there cited. We submit that the statute fails to meet that

test. It is overbroad because it prohibits all anonymous

political literature. It covers leaflets discussin? abstract

issues as weil as those containing personal references.*’ The

possibility that some leaflet or handbill may contain libel-

ous matter does not justify the sweeping proscription of all

anonymous literature.

It is also argued that, in the context of an election,

it is sometimes difficult to identify a source before a choice

must be made (Appellant’ s Brief, pp. 20-21). The New

York statute, however, i is not restricted to. the dissemination

of materials immediately prior to an election but applies

broadly to wx point | in time in connection with any elec-

_ tion.

—— -

Apposite to both hom: arguments is Justice Harlan’s

comment, in his concurring opinion in ‘the Talley case, su-

pra, that, although the restrictive ordinance was aimed at

the —— of fraud, deceit, false advertising, obscenity,

_ libel, ete., . the. ordinance is not so limited, and I think

it will not te for the State: simply to say that the circula-

tion of .all anonymous handbills must be suppressed = in

4. Compare the Pde: statute; 18 U.S.C., Sec. 612, upheld in

U nited States v. Scott, supra. That statute is limited to statements

* about individuals. -

led

order to identify the distributors of those that may be of

an obnoxious character’’ (362 U. S: at 66).°

D. Finally, the appellant has not even borne the burden

of showing that anonymous publications are sO significant

‘a factor in elections .as to require this restraint on ex- .

| _ pression. The history recited i in its brief (pp: 21- -25) hardly . -

rises to the level of showing a pressing need for restric-

tions. At most, anonymous literature appears as a minor

irritation, creating a desire on the part of many fo put an «

end to it. But more than mere irritation or desire on the

part of persons in office is needed to justify this measure.

It has not been shown, as it must be, that the free exchange

of ideas, the election process or any other proper interest

- of the state has actually been jeopardized.

We submit, therefore, that New York has shown no

more than ‘‘mere legislative pr eferences or beliefs respect-

_ ing matters of public convenience”? which this Court held in |

the Schneider case, supre, to be an insufficient response to

a claim of constitutional deprivation of freedom of ex-

pression. : _ anf i

5. A number of the decisions upholding state anti-anonymity

laws may be distinguished on the ground that the statute involved

- Was more narrowly drawn than that of New York. Thus, the Cali-

fornia statute, dealt with in Canon v. Justice Court, 393 P. 2d 428

(1964), is limited to statements “designed to injure or defeat” a can-

didate “by reflecting upon his personal character or political action.

.” In the Canon case, this statute was interpreted to apply only

to personal ‘attacks on candidates, not impersonal criticism of their

- views about issues or criticism of their official conduct, such as is

involved here. (It should be noted that the —— invalidated on

other grounds. ?

Conclusion

The statute here challenged places a restraint on the

exercise of the right to freedom of expression, guaranteed

against governmental interference by the First and Four-/

teenth Amendments to the United States Constitution. The

restraint imposed is substantial. The State has failed to.

show sufficient countervailing interests to justify its im-

position.

We therefore urge this Court to uphold the decision

ee that the New York statute is invalid.

Respectfully subsnitted,

‘ Joseru B. Rosson .

Attorney for American Jewish Congress,

' Amicus Curiae

Bavan.y CoLEMAN —

. Of Counsel

January, 1969

‘ . . , | ; ; . =

6 ~~ —sC GOLDEN %, “AWICKLER.

- anpnymous handbills which the complaint identified as

to be distributed in’ the 1966 and subsequent elections

were.the 1964 handbill and “similar anonymous leaflets.

On the record therefore the only supportable conclusion —

was that Zwickler’s-sole concern ‘was ‘literature relating

to the: congressman and“his ‘record:’ Since the New

York statute’s: ‘prohibition’ of anonymous handbills

applies only to handbills directly pertaiming to election

campaigns, and’ the prospect: was neither real nor imme- -

diate of a campaign involving.the congressman, it was

wholly conjectural that another occasion might arise

When Zwickler might be prosecuted for distributing the .

handbills referred to in the complaint. His assertion

in his brief that the former congressman “can be a

candidate for Congress again” is hardly a substitute for

evidence that this is a prospect of “immediacy and

reality.” Thus the record is in sharp contrast to that

in Evers vy. Dwyer? 358 U. 8. 202 ( 1958), relied upon by

‘a _ the District Court. —

It was not enough to say, as did the District Court,

that nevertheless Zwickler has a “further and far broader

right to ‘a general adjudication of unconstitution-

ality .. . [in] his own interest as well as that of others

who would with like 2 gre! practice free spééch

in a political environment ....” The constitutional

question, First Amendment or r otherwise, must be pre-

sented in the context of a specific live grievance. In

United Public Workers of America v. Mitchell, supra,

. &t'89-90, we said:

“The power of courts, and itlenntely of this Court,

- to ‘pass upon the constitutionality of acts of Congress. _-

* The allegation of the complaint that Zwickler might distribute —

anonymous handbills relating to “party officials” does not indicate

otherwise. The Congressman held an ‘elective party — as a

district leader. See 290 F. Supp., at 248. . "mg

. . , ¢ ° Zt

> arises only when the interests of litigants require °

Ene the use of this judicial authority for their protection

‘eo against ’.actual PERO, A Arpothatist threat

a a _ is not enough.” ie a

‘The same is true of the power to pass upon. the constitu-

tionality of state statutes’ No federal court, whether ~

this Court or a District Court, has “jurisdiction to pro-

nounce any statute, either of a State or of the United:

States, void, because irreconcilable with the Constitution,

litigants in actual controversies.” Liverpool; N. Y. and

Phil. 8. 8, Co. v. Commissioners, 113 U. §. 33, 39 (1885).

_ (Emphasis added.) See also United States v. Raines,

-362 U. S. 17, 21 (1960). The express limitation of the

Declaratory Judgment Act to cases “of actual contro-

vérsy” is explicit recognition of this principle.

We conclude that Zwickler did not establish the exist-”

enge at the time of the hearing on the remand of the

elements governing the issuance of a declaratory judg-

ment, and therefore that the District Court should have

dismissed his complaint. We accordingly intimate no

‘view upon the correctness of the District: Court’s holding

as to the constitutionality of the New York statute.

The judgment of the District Court is reversed, and the

case is remanded with direction to enter a new judgment

meee the complaint.

“ ; ° It is 86 ordered.

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