Oregon Advisory Opinions April 21, 1961: OAG 61-59 (April 21, 1961)

Oregon Attorney General Opinions

1961.

OAG 61-59.

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You have requested an opinion as to whether Senate Bill No. 457 violates Article I, § 22, of the Oregon Constitution, guaranteeing freedom of speech and assembly.

Senate Bill No. 457 authorizes a major political party to hold a state-wide convention to adopt a party platform and provides that the convention "shall not, through the platform it adopts or by any other means express a preference for or endorse any party candidate for nomination or election at a primary election." It further provides that a major political party convention shall not "restrict or attempt to restrict by the party platform or by any other action of the convention any member of the party from exercising his own judgment as to ballot measures, candidates, selection of public officers or legislative action." The last section states that no state, county or city central committee and no "county or city convention of a major political party may endorse or express a preference for any candidate for nomination or election at a primary election."

Article I, § 8, Oregon Constitution, provides as follows:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

Article I, § 26, Oregon Constitution, provides as follows:

"No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances (sic)."

Consideration must also be given to the First Amendment of the United States Constitution since freedom of speech is a fundamental personal right protected by the Due Process Clause of the Fourteenth Amendment from impairment by the states. Gitlow v. New York, (1925) 268 U.S. 652, 69 L. Ed. 1138; Fiske v. Kansas, (1927) 274 U.S. 380, 71 L. Ed. 1108; Hughes v. Superior Court of California, (1950) 339 U.S. 460, 94 L. Ed. 985; American Federation of Labor et al. v. Bain et al., (1940) 165 Or. 183, 106 P. (2d) 544. That amendment provides as follows:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The basic lines of legislative power have been drawn on many occasions. The Oregon Constitution is not to be regarded as a grant of power but rather as a limitation upon the power of the legislature. State ex rel Chapman v. Appling, (1960) 220 Or. 41, 47, 348 P. (2d) 759. The legislature may enact any law not forbidden by the Constitution or delegated to the Federal Government or prohibited by the Constitution of the United States. Marr v. Fisher et al., (1947) 182 Or. 383, 387, 187 P. (2d) 966. The broad range of legislative power applies in equal measure to election matters. Wright et al. v. Blue

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Mountain Hospital District, (1958) 214 Or. 141, 145, 328 P. (2d) 314.

Since Senate Bill No. 457 concerns political parties, the character of political parties and the constitutional limitations surrounding freedom of speech and assembly must be probed.

The Oregon Constitution makes no mention of political parties except in Article II, § 16, which is not relevant to the question at hand. In general, a political party is defined as an association of voters believing in certain principles of government, formed to urge the adoption and execution of such principles in governmental affairs through officers of like belief. Kelso v. Cook, (1916) 184 Ind. 173, 110 N.E. 987, 994. See Ladd v. Holmes, (1901) 40 Or. 167, 66 P. 714; 18 Am. Jur., Elections, § 132, p. 264; 29 C.J.S., Elections, § 84, p. 107. People have an inalienable right to assemble themselves into political parties and conventions, and assemblies of a political party have a right to be protected from the interference of members of other political parties. State ex rel. v. Portland, (1913) 65 Or. 273, 281, 133 P. 62. As the term is used in Senate Bill No. 457, a major political party is an affiliation of electors representing a political party or ORGAnization which polled for its candidates for presidential electors at the last general election at least 20 percent of the entire vote cast for that office. ORS 248.010.

What is freedom of speech and assembly concerning which no law shall be passed and which is a constitutional limitation upon legislative power? Freedom of speech is not absolute and without limitation so as to be the equivalent of unbridled license. Although it is difficult to define, it has its limitations. State v. Boloff, (1932) 138 Or. 568, 623, 4 P. (2d) 326, 7 P. (2d) 775; Walter Chaplinsky v. State of New Hampshire, (1942) 315 U.S. 568, 86 L. Ed. 1031; Terminiello v. Chicago, (1949) 337 U.S. 1, 93 L. Ed. 1131. It does not comprehend the rights to speak on any subject at any time. American Communications Association, C.I.O., et al. v. Douds, (1950) 339 U.S. 382, 94 L. Ed. 925, reh. den. 334 U.S. 990, 94 L. Ed. 1391. Freedom of speech is necessarily subject to order without which the civil liberties of others could not exist. United Public Workers v. Mitchell, (1947) 330 U.S. 75, 91 L. Ed. 754. In a dissenting opinion in Abrams v. United States, (1919) 215 U.S. 616, 63 L. Ed. 1173, Mr. Justice Holmes defined it as "free trade in ideas." It has its roots in the proposition that all "ideas having even the slightest redeeming social importance---unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests." Roth v. United States, (1957) 354 U.S. 476, 484, 1 L. Ed. 1498.

Because of the difficulty in drawing the lines, the courts have circumscribed the area of freedom of speech on a case-by-case basis weighing the competing interests of unencumbered speech on the one hand and the interests of the state on the other. Unless the evil sought to be curbed by the state is substantial, speech cannot be restrained. State v. Jackson, (1960) 71 Ad. Sh. 391 (dissenting opinion). Thomas v. Collins, (1945) 323 U.S. 516, 529, 89 L. Ed. 430. The problem is essentially one of balancing the probable effects of the statute upon the free exercise of free speech and assembly against a legislative determination that certain evil conduct should be suppressed. American Communications Association, C.I.O. v. Douds, supra. In other words, where First Amendment rights are asserted in opposition to governmental action, the issue is resolved by balancing the competing private and public interests at stake in the particular circumstances shown, and the "* * * ' "subordinating interests of the state must be compelling" ' in order to overcome the individual rights at stake." Barenblatt v. United States, (1959) 360 U.S. 109, 3 L. Ed. (2d) 1115.

The meaning of the right of peaceful assembly has been explained in DeJonge v. Oregon, (1936) 299 U.S. 353, 81 L. Ed. 278. In that case a state statute prohibited participation in a meeting for lawful discussion of public issues where held under the auspices of an ORGAnization which advocated the employment of unlawful means to effect industrial or political change. At pages 364, 365, the court indicated that the right of peaceable assembly is

"* * * cognate to those of free speech and free press and is equally fundamental. * * * [It] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions, ---principles which the Fourteenth Amendment embodies in the general terms of its due process clause. * * *

"* * * The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question * * * is not as to the auspices under which the meeting is held but as to its purpose; not as to the relation of the speakers, but whether their utterances transcend the

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bounds of the freedom of speech which the Constitution protects. * * *"

This close relationship between free speech and free assembly has been pointed out in National Asso. for the A.C.P. v. Alabama, (1958) 357 U.S. 449, 460, 2 L. Ed. (2d) 1488, which, in part, states as follows:

"Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. De Jonge v. Oregon, 299 US 353, 364, 81 L ed 278, 283, 57 S Ct 255; Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. [citing cases] Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny."

Turning to Senate Bill No. 457, the apparent object of the bill is to secure "a free primary" in the sense that the electors may exercise their vote uninfluenced by the expressed preferences of a political assembly as to a political candidate or issue and on the basis of their own judgment.

The bill is not designed to prevent corruption by condemning specific abuses as in the Corrupt Practices Act. It does not prohibit, for example, false statements about a candidate. It does not prohibit partisan activity by governmental employes and thereby foster the state's admitted interest and the quality of public service. Stowe v. Ryan, (1931) 135 Or. 371, 384, 296 P. 857; United Public Workers v. Mitchell (1947) 330 U.S. 75, 91 L. Ed. 754, supra.

Instead, the bill, apparently on the theory that it is in the public interest that major political parties be not heard, provides that there be a vacuum of political comment by the major political parties in order that the electors may not be influenced by such comment. This object is clearly not a legitimate governmental object to be weighed against freedom of speech and assembly but rather amounts to a pure negation of free speech. The peaceful discussion of public matters of importance and the circulation of those ideas cannot be legislated out of existence. See Talley v. California, (1960) 362 U.S. 60, 4 L. Ed. (2d) 559, where an ordinance absolutely prohibiting the circulation of anonymous hand bills was struck down for this reason.

A law similar to Senate Bill No. 457 was struck down in State ex rel. Ragan v. Junkin, (1909) 85 Neb. 1, 122 N.W. 473, under substantially similar constitutional provisions to Article I, §§ 8 and 26. The statute declared that candidates for judicial and educational offices shall not be "nominated, endorsed, recommended, censured, criticized or referred to in any manner by any political party or any political convention or primary or at any primary election." The court, at page 474, stated as follows:

"* * * A political meeting or convention is an 'assemblage' within the meaning of the constitutional provision that the right of the people to assemble and consult for the common good shall never be abridged. The right of a citizen to speak, write, and publish on all subjects does not terminate when he enters a political convention or assemblage. With good motives and for justifiable ends the members of such a body may jointly speak and publish the truth about candidates for office, and this right extends to aspirants for judicial and educational offices.

"* * * Delegates and members of political ORGAnizations not only take with them into their party councils the inalienable right to speak, write, and publish on all subjects, but the full benefit of this privilege can only be obtained by united action. Political parties are the great moving forces in the administration of public affairs, and their influence in elections cannot be eliminated by the Legislature as long as the right to assemble and speak the truth remains in the charter of our liberties. * * *"

Because of the prohibitions of the Fourteenth Amendment of the United States Constitution, it does not appear necessary to discuss whether the Oregon Constitution is violated by Senate Bill No. 457.

Accordingly, it is our opinion that Senate Bill No. 457 is unconstitutional and that it violates freedom of speech and assembly as guaranteed by the First Amendment of the United States Constitution and secured against state action by the Fourteenth Amendment of the United States Constitution.