Oregon Advisory Opinions March 07, 1967: OAG 67-29 (March 7, 1967)
Collection: Oregon Attorney General Opinions
Docket: OAG 67-29
Date: March 7, 1967
Advisory Opinion Text
OAG 67-29.
The holding of the United States Supreme Court in Talley v. California (362 U.S. 60) would not apply to ORS 260.360, prohibiting anonymous political publications, so as to render such statute unconstitutional.
Secretary of State
You request our opinion as to the constitutionality of ORS 260.360 in light of the decision of the United States Supreme Court in Talley v. California, (1960) 362 U.S. 60, 4 L. Ed. (2d) 559.
ORS 260.360 provides as follows:
"(1) No person shall write, print, publish, post or circulate or cause to be written, printed, published, posted or circulated through the mails or otherwise any letter, circular, bill, placard, poster or other publication relating to any election or to any candidate at any election, unless it bears on its face the name and address of the author and publisher thereof.
"(2) Violation of this section is an illegal practice, and is punishable, upon conviction, by a fine of not less than $25 nor more than $1,000, or by imprisonment in the county jail for not more than six months, or both."
In Talley v. California the following Los Angeles city ordinance was held unconstitutional:
"No person shall distribute any handbill in any place under any circumstances, which does not have printed on the cover, or the face thereof, the name and address of the following:
"(a) The person who printed, wrote, compiled or manufactured the same.
"(b) The person who caused the same to be distributed; provided, however, that in the case of a fictitious person or club, in addition to such fictitious name, the true names and addresses of the owners, managers or agents of the person sponsoring said handbill shall also appear thereon."
The United States Supreme Court held:
"* * * It is plain that anonymity has sometimes been assumed for the most constructive purposes.
"We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. Bates v. Little Rock, 361 US 516, 4 L ed 2d 480, 80 S Ct 412; National Asso. for Advancement of Colored People v. Alabama, 357 US 449, 462, 2 L ed 2d 1488, 1499, 78 S Ct 1163. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face." (4 L. Ed. (2d) at 563)
We believe the ruling in Talley v. California is not applicable to a statute such as ORS 260.360 for reasons well stated in Canon v. Justice Court for Lake Valley Judicial District, (1964) 39 Cal. Rptr. 228, 393 P. (2d) 428. In that case the California Supreme Court was required to pass upon the following California statute:
"Every person is guilty of a misdemeanor who writes or causes to be written, printed, posted, or distributed any circular, pamphlet, letter, or poster which is designed to injure or defeat any candidate for nomination or election to any public office by reflecting upon his personal character or political action, unless there appears upon the circular, pamphlet, letter, or poster, in a conspicuous place, the name and address of the printer and either:
"(a) The name and address of the chairman and secretary or the names and addresses of at least two officers of the political or other organization issuing it; or
"(b) The name and residence address, with the street and number, if any, of some voter of this State, who is responsible for it."
The California court held the statute unconstitutional solely because of subparagraphs (a) and (b) thereof, supra (features not contained in ORS 260.360), saying:
"* * * Although the statute is, by its terms, applicable to 'every person,' its identification requirement can be satisfied only if the writing bears the name and address of either (a) two officers of the organization issuing it, or (b) 'some voter of this State, who is responsible for it.' Thus, identification of an individual who issues such a writing complies with the requirement only if that individual is a California voter. All other individuals who issue such a writing can comply with the statute only by obtaining the consent of a California voter to be responsible for it, and apparently need not publicly, identify themselves. Thus, the purposes behind the identification requirement would not be accomplished. But more importantly, this unconstitutionality infringes upon the right of free speech of all individuals other than California voters. The requirement that such a person must find a California voter who will accept responsibility for the writing before it may be issued is an invalid prior restraint on freedom of expression. * * *" (393 P. (2d) at 436)
However, the court held that were it not for the discriminatory features of the California statute it would have been valid, and did not fall within the doctrine of Talley v. California. In its well reasoned opinion, which we quote at length, the court said (393 P. (2d) 428 et seq.):
"One of appellant's main contentions is that section 12047 infringes on freedom of speech as guaranteed by the federal and state Constitutions. This contention, too, is unsound. It is our view that under the principles set forth in Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559, and other recent cases, discussed below, enforcement of section 12047 does not unconstitutionally interfere with freedom of speech. [p. 430]
"The purpose of the statute is clear. It requires identification so that (1) the electorate may be better able to evaluate campaign material by examination of the competence and credibility of its source, (2) irresponsible attacks will be deterred, (3) candidates may be better able to refute or rebut charges---so that elections will be the expression of the will of an undeceived, well-informed public. It is clear that the integrity of elections, essential to the very preservation of a free society, is a matter 'in which the State may have a compelling regulatory concern.' (Gibson v. Florida Legislative Investigation Comm., supra, 372 U.S.
539, 546, 83 S.Ct. 889, 894). It was not the aim of the Legislature to hinder the communication of ideas, and there is nothing to indicate that the disclosure requirement, under the circumstances of present-day California politics, would in fact substantially inhibit expression, even in the limited area to which the statute is applicable. It was intended to deter the scurrilous hit and run smear attacks which are all too common in the course of political campaigns. The primary concern is not for the candidate, however, although it is clearly in the public interest to create conditions conducive to the encouragement of good citizens to seek public office. The chief harm is that suffered by all the people when, as a result of the public having been misinformed and misled, the election is not the expression of the true public will. * * * [pp. 431-432]
"Nor did Talley hold that anonymity is always protected. It relied on Bates and N.A.A.C.P. for the proposition that 'there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified.' (Talley v. California, supra, 362 U.S. 60, 65, 80 S.Ct. 536, 539). In Talley the ordinance was so broad as to bar 'all handbills under all circumstances anywhere' which are issued anonymously. (Talley v. California, supra, 362 U.S. at p. 64, 80 S.Ct. at p. 538.) The court expressly stated that it was not passing on the validity of an ordinance intended to and in fact limited to the accomplishment of valid purposes. (Id., 362 U.S. at p. 64, 80 S.Ct. 536.) Rather, the ordinance was held invalid 'because the breadth of its application went far beyond what was necessary to achieve a legitimate governmental purpose.' (Shelton v. Tucker, 364 U.S. 479, 489, 81 S.Ct. 247, 253, 5 L.Ed.2d 231.) [p. 433]
"* * * It furthers the very ends sought to be achieved through the right of free speech, to wit, 'that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means.' (De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278.) This end is attained when the will of the people is an undeceived, well-informed will. 'The effective functioning of a free government like ours depends largely on the force of an informed public opinion.' (Barr v. Matteo, 360 U.S. 564, 577, 79 S.Ct. 1335, 1342, 3 L.Ed.2d 1434 (concurring opinion).) The freedoms of the First Amendment, however, not only foster legitimate government, but also depend on its survival. While we recognize that 'the fitting remedy for evil counsels is good ones' (Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (Justice Brandeis, concurring)), and that 'Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech and assembly' (Wood v. Georgia, 370 U.S. 375, 389, 82 S.Ct. 1364, 1372, 8 L.Ed.2d 569), we must also be cognizant of the realities of the specific problem here dealt with. Adequate dissemination of rebuttal or refutation is virtually impossible in the situation of pre-election attacks. The heat of an election campaign and limitations of time work against the effective use of 'counter-argument and education.' Moreover, evaluation of the source of the statement, and of the motivations of its proponents, are part of 'education.' While 'It is plain that anonymity has sometimes been assumed for the most constructive purposes' (Talley v. California, supra, 362 U.S. 60, at p. 65, 80 S.Ct. 536, at p. 539), anonymity all too often lends itself, in the context of attacks upon candidates in the pre-election period, to smears, as a result of which the electorate is deceived. Identification permits confrontation and often makes refutation easier and more effective. It tends to reduce irresponsibility. It enablies the public to appraise the source. * * * [p. 435]
"We conclude, therefore, that the public interest in more complete information and clean, free elections, along with the incidental benefit of maintaining an environment more hospitable to candidates for public office, exceeds the interest in the marginal decrease in freedom of expression resulting from loss of anonymity in the instances in which the statute is applicable. [p. 436]"
The reasoning of the California court impels us to conclude that the decision of the United States Supreme Court in Talley v. California would not apply to ORS 260.360, so as to render such statute unconstitutional.