TALLEY v. CALIFORNIA

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Argument of A. L. Wirin

Chief Justice Earl Warren: Number 154, Manuel D. Talley versus California.

Mr. Wirin.

Mr. A. L. Wirin: Mr. Chief Justice and may it please the Court.

This case comes from Los Angeles also or I wouldn't be here, entirely different case than the former one.

It involves an ordinance -- an ordinance of the City of Los Angeles, the text of which appears of Appendix A to our opening brief, our white brief and the constitutionality of which we challenge as applied.

This case involving the First Amendment as absorbed by the Fourteenth, so that perhaps it can be said this doesn't involve due process, certainly not due process procedurally but involved the Due Process Clause in the Fourteenth Amendment which incorporates the -- the guarantees in the First Amendment.

I invite Your Honors' attention to the ordinance.

It is a quite brief.

It appears in the lower half of page 35 of our opening brief and I invite your attention to page 35, I invite your attention because I shall want to be arguing in a moment about the sweep and breadth of this ordinance.

We feel that it was written not with fine pen, to borrow a phrase to one of the Your Honors, by with a written -- with a wide broom and sweeps in conduct which that Constitution protects.

It provides that no person shall distribute any handbill.

I -- I shall interrupt myself as I read it if I may, because any handbill means non-commercial as well as commercial, political as well as commercial, no person shall distribute any handbill clear, in the street, the public places, not at all.

On the face of it, the ordinance proscribes the distribution of any handbill in any place under any circumstances except where that handbill complies with certain conditions and these conditions are set forth in sub sections A and B.

These conditions are that both the person who writes it or prints it or who is responsible for it or manufactures it.

I would -- we think that (a) prefers to the author of what appears in the leaflet and (b) reaches the distributors or that everybody has reached the person who carved the thing to be distributed.

Now, they must place their name and address both of them in the conjunctive upon this leaflet in order to comply with the -- the regulation in Los Angeles.

And if it turns out that the -- that either of the -- either the distributor or the author is a boundary association like a labor union or a club which is come -- and says here about a personal club had -- had a factitious name that is not the name of the real person then there must be posted on the leaflet the true names and addresses of the owners, managers or agents of the persons sponsoring the said handbill.

Now, I have said that we are attacking the ordinance as applied and so let us look at the handbills which constituted the offense in this case, they appear in the record at 17 and 18.

They are two of them; one that is 17 and the other is 18 and you will notice that it's of course not a commercial handbill but if a handbill dealing with the troubling and the controversial matter of a proper race relations and treatment of racial groups.

The ordinance distributed at a market urges a boycott of that market.

I say the ordinance, I mean the leaflet because as the leaflet recites in the second or third paragraph.

Well, the leaflets is written or simply by a very simple person and very simply it begins by saying, "We are boycotting the so and so market," and ask the question why, they didn't give us a reason because that the market carries goods which come from manufacturers that do not offer equal employment opportunities to Negroes, Mexicans and Orientals.

And then, the leaflet concludes with the announcement prior to the appearance of the names of various manufacturers or producers that discriminate racially.

The leaflet we cite National Consumers Mobilization is boycotting all these firms as part of its program for fair employment.

Leaflet number -- second leaflet which appears on 18 is somewhat in the same general category.

It's a modest invitation to its -- for support.

I say modest because it urges persons to send money, 25 cents a month to this group, to support its program and had a place for the signature of the person who is willing to either do that or at least expresses his support and the person who received that leaflet and agrees with the sentiments expressed in it, sentiment being I believe that every man should have an equal opportunity for employment, no matter what its race, religion of place of birth may send in his moral support or as well as his -- as well as his modest contribution.

Now, Your Honors, central to the issue in this case is a large and fascinating historic and current problem as to the place of anonymity in American life, in American literature and in American publications.

Justice John M. Harlan: Before we proceed to that --

Mr. A. L. Wirin: Yes, Your Honor.

Justice John M. Harlan: -- who is the petitioner dealing with it?

Mr. A. L. Wirin: The petitioner is -- was convicted for distributing these leaflets.

The name is Kalven.

Justice John M. Harlan: He is not -- he is not the person that carried by A of section --

Mr. A. L. Wirin: Well, we think he is.

Justice John M. Harlan: Apparently a writer of the file --

Mr. A. L. Wirin: Well, we -- I intent to come that later but I will answer it right now.

Justice John M. Harlan: Come -- come to it later.

Mr. A. L. Wirin: No.

No – now is better than later.

The record in this case -- as to what happens entirely is the most -- is the most neither of record it just couple -- couple of pages and it consists essentially of the leaflet being introduced into evidence and a showing that the defendant was distributing the leaflet and that was it.

Now, it is true that the respondent makes the argument that so far as A is concern, and so far as the right of anonymity.

If any, of an author, the defendant is not in the shoes of an author and therefore may not raise the question.

Now our answer is -- is quickly this; in the first place, a reading of the leaflet discloses that a distributor might very well be the author, this isn't the a profound -- these leaflets aren't profound the treats, it's in philosophy or essays so that, it's unlikely that they -- that the person who does the menial work of distributing wouldn't be the author.

Moreover, we think that since this leaflet strikes that of distributor and makes him liable, guilt -- makes him guilty.

Whether the distributor or the author doesn't make the disclosure which the ordinance requires, that therefore, the distributor in this case, the defendant charged with a crime is in a position to raise the broad societal rights which are at issue and may as the seller of books in the Smith versus California, just decided by this Court, protect the -- will protect the authors right to anonymity as well as his owner.

But in any event, to be specific about it, the only person charged with offense is the defendant whose conduct consisted of distributing this leaflet.

Now, I'm about to say that there is involved in this case and the briefs contain very obvious -- contain interesting in the respondent brief very colorful dissertations on the -- on the nature and the right of anonymity.

In this case, the right of anonymity and its abstract and in its absolute is not involved because Your Honors will see if you will might trouble you to look again at page 17 and 18, that the distributor -- that this leaflet makes no claim of complete anonymity.

On the contrary at the (Inaudible) of the first leaflet, there appears the name of a group, there appears an address not a resident address to be sure, but a post office address as well as telephone number.

And the same appeared also on leaflet number -- on second leaflet which appears in the record at 18.

So, the question which is to be decided as we view it in this case is not broadly and in the abstract and in vacuum the right to complete anonymity, but whether or not, the partial and anonymity to which this petitioner resorted was warranted and is protected by the Constitution under the particular circumstances in this case.

Justice Charles E. Whittaker: I thought you have -- I thought know what that means?

Mr. A. L. Wirin: Well, we do --

Justice Charles E. Whittaker: Neither one or the (Inaudible)

Mr. A. L. Wirin: Alright.

When I think partial anonymity, I mean this; if it were completely anonymous, the reader of the document would have no way of locating the author or the distributor to be completely anonymous.

That is once the distribution was completed, but in this instance, one who desires to communicate with the distributor certainly or with the author may do so and he may do so by picking up a telephone and communicating with him or he may do so by using the mail in order to do so.

And I shall urge upon, Your Honors tomorrow morning that in this case, the critical distinction, the defendant being unwilling to indicate where he lives was completely warranted because under the circumstances of this distribution in Los Angeles at that time, for him to have this distributed this leaflet and indicated where he lives, may have meant an invitation of bricks thrown through the door of his home.

And therefore, under the circumstances, the partial anonymity to which he resorted was a justified and protected by the Constitution.

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Argument of A. L. Wirin

Chief Justice Earl Warren: Number 154, Manuel D. Talley, Petitioner, versus California.

Mr. Wirin, you may continue your argument.

Mr. A. L. Wirin: Chief Justice, may it please the Court.

I should like now for a moment to advert to the opinion of the court below which is being reviewed here, an opinion by the Appellate Department of the Los Angeles Superior Court, which is the highest court in California available to entertain an appeal.

That Court divided 2-to-1.

It's a three-judge court.

The opinion appears in the record at page 27 and following.

I say the Court divided 2-to-1 which the presiding judge of that Court, Judge Bishop dissented.

I think I'd like to spend a moment in the -- if I may with Your Honors' generous permission in the -- in a quasi-facetious vein and to say to Your Honor that the concurrence by Judge Swain is a novelty in the law for its colloquialism.

It appears in the record at page 34, it is just half a dozen or so lines.

And Judge Swain, who is a -- an eminent jurist in an Oxford -- an ex-Oxford scholar, read the decisions of this Court in N.A.A.C.P. versus Alabama as he did in Bryant versus Zimmerman involving the Ku Klux Klan, and he thought that two decisions were contradictory and the only distinction he saw between Justice Harlan's opinion in the N.A.A.C.P. versus Alabama, the earlier case, is that one case, the -- the former dealt with good guys and the earlier one dealt with bad guys or he put it a little bit more scholarly, he said the former dealt with -- then it should be dealt with good guys, in the latter with wicked men.

Apparently, he had been looking at Westerns on T.V.

And he was drawing --

Justice John M. Harlan: (Inaudible) and takes to another.

Mr. A. L. Wirin: Oh, Yes.

Well, as an advocate of liberty, I -- I support the right of Oxford men under all circumstances.

Justice Felix Frankfurter: (Inaudible)

Mr. A. L. Wirin: I beg your pardon, sir?

Justice Felix Frankfurter: (Inaudible)

Mr. A. L. Wirin: Well --

Justice Felix Frankfurter: You're very broad in (Inaudible)

Mr. A. L. Wirin: Now, I would say Oxford men above all others, next to Harvard men.

Justice Felix Frankfurter: Don't go too far.

Mr. A. L. Wirin: All right.

[Laughter]

Many event now, to be -- to be serious, if I may, the Appellate Department of the Los Angeles Superior Court, the majority considered the justifications for the ordinance and the warrant part and justify the ordinance on the ground that the purpose of the ordinance was to provide a means for fixing responsibility for abuses.

Now, I must say right now that so far as the Appellate Department of Superior Court is concern, and so far as this -- the respondent City of Los Angeles up to its brief in this Court, there was no spelling out either in detail or otherwise as to what these allegedly abuses against with this ordinance was saying were.

The Appellate Department, in affirming the judgment, contended itself with using the word “abuse” in generality.

The Appellate Department pointed to no findings by the City Council reciting specific abuses because there were no findings by the City Council.

Justice William J. Brennan: How long is the endorsement?

Mr. A. L. Wirin: I'm not too sure.

But it is some years -- some years old, I would say, 15, 20 years old.

Mr. Grey, who is City Attorney, I was fearful, I might be asked that and I just didn't -- didn't get ready for that.

Justice William J. Brennan: No history at all of it?

Mr. A. L. Wirin: There is no history at all.

There was no -- well, in the first place, this was adopted by the City Council of Los Angeles.

It's an -- its functioning is -- is informal and we know of no legislative history so far as that ordinance is concern.

And in any event, certainly, no legislative history was offered to any of the court below.

Justice William J. Brennan: And no contemporaneous incidents which might explain this.

Mr. A. L. Wirin: And no contemporaneous incidents at --

Justice William J. Brennan: At the time, 15, 20 years ago?

Mr. A. L. Wirin: Well, I -- I have to answer Your Honor's question in this modified form, that in any event, no contemporaneous incidents as supporting the ordinance as of the time the ordinance was adopted was -- were proffered to any of the court below and the Appellate Department upheld the ordinance.

And this -- on this general claim that it was directed to abuses, and also, took the position that after all, no ordinance was -- came before a court armed with the presumption of validity, and it was contented to follow this presumption even though this is an ordinance directly aimed at the expression of opinion with respect to which there maybe considerable argument as to whether that kind of an ordinance had a presumption of constitutionality.

Justice John M. Harlan: You attack the statute on its face (Inaudible)

Mr. A. L. Wirin: Let me say now that our essential attack is on the ordinance as it is applied, we do also attack it on its face.

And I will deal with that -- with that towards the conclusion of my -- my presentation.

But our central complaint is that the ordinance as applied violates the First Amendment.

Justice Felix Frankfurter: Is this ordinance analog with another city?

Mr. A. L. Wirin: We know of no such analog.

And here again, no such analog was called to the attention of any of the courts below.

And it -- so far as we know, it is -- it is a novelty in the law but -- but here again, we could be quite entirely mistaken.

I have said that there is a dissenting opinion by the presiding judge, which opinion appears in the record at page 34.

I may say to Your Honors that Judge Bishop has been a judge of the Los Angeles Superior Court for some 40 or 45 years.

He expressly noted in his dissent that there were relatively few instances where there had been an abuse with respect to the distribution of -- of leaflets.

And as I say, he had been on the bench for many years and may be deemed to be a person who was reasonably conversant with what were matters of common knowledge in that community.

He -- he looked at the other judges on -- on the leaflets and he expressed the view which appears in the record at 36, a view with respect to which there can be, I think, no dispute.The leaflets here were plainly not obscene, libelous nor otherwise an abuse of the right of free speech and of the press.

And he expressed the view which we share that the requirement of the fixing upon a leaflet to be distributed anywhere in the City of Los Angeles of the names and addresses, both of the author and the distributor, was not merely as he put it a technical requirement but was a -- a serious inroad upon freedom of expression.

Justice Charles E. Whittaker: How does the -- Mr. Wirin (Inaudible)

Mr. A. L. Wirin: Yes.

Would Your Honor let me answer that in just about two minutes?

Justice Charles E. Whittaker: (Inaudible)

Mr. A. L. Wirin: No.

Well, I -- I certainly intend to -- to answer that question.

But I -- I would like to do it in a moment and do it, if I may, may I?

All right.

I want to say now that instances of vigilantism and vandalism and violence, and I think I'm beginning to answer Your Honor's question right now, Mr. Justice Whittaker, were called to the attention of the Superior Court and the courts below.

The majority of the Court may know reference to them but Judge Bishop did and he said in his opinion, it appears in the record at 35 that one who sees an evil, it's in the -- it's in the mid-paragraph on page 35, and I shall quote it, “One who sees an evil against which he would strike by written criticism will refrain from doing so because of what he believes to be sure consequences to himself and family if his name appears on the panel.”

In other words, therefore, we are talking about, at least Judge bishop was, of sure consequences which befalls a person who distributes a leaflet in behalf of a minority group, protesting racial discrimination in the City of Los Angeles.

And then he went on to say, the right freely to use the printed word is not limited to those so moved that they will act regardless of the consequences.

In just another moment, I want to discuss with Your Honors what these consequences are.

In short, Judge Bishop took a view, a view which we share that freedom of the press including, of course, distribution of leaflets, is not limited to heroes.

It is not only for the stout of heart but is also for the timid and the faint hearted.

Now, that leads me to answer Your Honor -- Justice Whittaker's question more specifically and more directly.

We have, as an appendix to our reply brief, referred to reports made by an official agency of the County of Los Angeles, an agency appointed, it -- the matter refer -- it appears at page -- at page 12 of our reply brief.

We have referred to findings and comments made by an official agency of the County of Los Angeles appointed by the Board of Supervisors of the County pursuant to an official ordinance.

I may say to Your Honors and particularly to Justice Frankfurter that what he have done here, is followed a pattern which was used in the Beauharnais case, in the Beauharnais case, the Court, through Mr. Justice Frankfurter, referred to findings by a Commission of the City of Chicago on human relations with respect to racial tensions in that community, indeed, there is a memorandum filed in that case as to racial tensions relying upon the findings made by that Commission and the memorandum indicates that it was filed at the request of Justice Frankfurter during the oral argument and also the suggestion of -- of Justice Black.

Justice Felix Frankfurter: Exactly.

They are related to great (Voice Overlap) --

Mr. A. L. Wirin: Oh, yes, indeed.

And --

Justice Felix Frankfurter: This ordinance --

Mr. A. L. Wirin: This --

Justice Felix Frankfurter: -- this ordinance is not restricted to a specific flyer that is in the record.

This --

Mr. A. L. Wirin: Quite -- quite so.

Justice Felix Frankfurter: -- this would apply, would it not, to an anonymous businessman --

Mr. A. L. Wirin: Quite so.

Justice Felix Frankfurter: -- sending out flyers where they should be with him rather than with a bigger concern or a smaller concern.

Mr. A. L. Wirin: Quite so.

Justice Felix Frankfurter: So that enveloping this discussion into racial consideration, it seems to me, I think foremost, inadmissible atmospheric introductions.

Mr. A. L. Wirin: Except for this, Your Honor.

The leaflets themselves, clearly on their face, deal entirely with the problem of racial matters.

Justice Felix Frankfurter: Face of the statute, you're not saying that you -- you apply -- you -- you're not objecting to the application of this ordinance to this particular leaflet or what it implies or its racial concern, are you?

(Voice Overlap) --

Mr. A. L. Wirin: Mr. Justice Frankfurter, indeed, if I may say so.

This is exact -- this is precisely what we're saying and indeed, we are saying that the Court need do no more that the Court needn't reach, though we think it could, needn't to reach to the ordinance in terms of its validity, consonant with due process and -- on its face.

Justice Felix Frankfurter: Well, is there any showing that's restricted to racial belief kind of (Voice Overlap) --

Mr. A. L. Wirin: Oh, no.

We are not, Mr. Justice.

Justice Felix Frankfurter: Or are you saying, you must carve out to the statute which cannot be attacked, according to your last statement or should not be because of its -- or its vagueness or its scope but it should be carve out that it can't be applied anything you turn to races?

Mr. A. L. Wirin: No.

I am saying there --

Justice Felix Frankfurter: Is that what you're saying?

Mr. A. L. Wirin: No, Your Honor.

Justice Felix Frankfurter: I can't understand that too.

Mr. A. L. Wirin: Well, no.

I'm going to say something --

Justice Felix Frankfurter: If you're not saying that, and I don't understand why the offense is still on racial business.

Mr. A. L. Wirin: Well, let me explain.

Justice Felix Frankfurter: In the case that --

Mr. A. L. Wirin: May I explain it?

Justice Felix Frankfurter: (Voice Overlap) they try to lag in racial possibility --

Mr. A. L. Wirin: May I explain it?

Justice Felix Frankfurter: -- though we haven't got enough trouble with that without being lagged in.

Mr. A. L. Wirin: Now, may I explain it, sir?

All right.

We are attacking this ordinance, which we admit, on its face, as not restricted to racial matters but which is broadly drafted so that it might apply to a leaflet affecting racial matters.

We are attacking this ordinance as applied to the petitioner of the instance -- in the instant case.

And in the instant case we say, the particular leaflets, which resulted in a conviction of the defendant, pertained to racial matters, this appears clearly on their face, and then we are saying as applied, a balancing of the -- of the interest of the City on the one hand and now, I'm talking only as applied.

In the interest of freedom of communication and hence, the possible incidents of injury to the distributor are factors which this Court may properly consider in determining whether or not on balance as applied to this petitioner with respect solely to these particular leaflets, there has been an abridgement of freedom of the press.

Justice Felix Frankfurter: If I understand that argument, it means that this Court may decide that whatever may be the validity of this statute in other situation, it can't be constitutionally applied in this case because the leaflet pertains to racial matter, is that right?

Mr. A. L. Wirin: That is right.

Justice Felix Frankfurter: All right.

Mr. A. L. Wirin: And because -- because of a particular --

Justice Felix Frankfurter: And in the further -- then -- then you have to argue the further question whether a statute otherwise constitutional is applied to the generality of the situations must fall if, within the generality of situations, the incident of its effect in a particular case is a racial matter.

Mr. A. L. Wirin: Yes.

And I'm --

Justice Felix Frankfurter: (Voice Overlap) arguing then.

Mr. A. L. Wirin: I'm prepared -- indeed.

I'm not -- not only do I -- do I not -- can I not escape it, I have no desire to escape it and this is my argument and my --

Justice Felix Frankfurter: It popped out, out of a statute which presumptively or assumably because, I think, when you have a city ordinance, you've got an Act of the State because the City is authorized to pass laws by the constitutional laws of the State therefore, for practical purposes, the State is here and not merely a city or a council --

Mr. A. L. Wirin: All right.

Justice Felix Frankfurter: -- this is state power --

Mr. A. L. Wirin: Yes.

Justice Felix Frankfurter: -- so you're arguing that a statute which in its generality may be valid and may not be applied to anything pertaining for racial consideration, is that right?

Mr. A. L. Wirin: No.

I'm not arguing merely that.

I'm arguing that it may not be --

Justice Felix Frankfurter: I'm not saying merely.

But if you say this particular thing falls because the flyer does relate to racial matters, then you must argue that it's -- that -- that has to be carved out, whatever maybe the faith of the rest of the ordinance.

Mr. A. L. Wirin: Well, I -- let me just say this, Your Honor.

I am definitely and unequivocally taking the position that although this ordinance may be valid on its face and may be valid as apply to others, as apply to the petitioner in these particular circumstances, it -- it offends due process.

And I'd like to develop that argument by saying to Your Honor that the circumstances upon which we rely as the result of which we make the argument that is applied to the petitioner and to the distribution of this leaflet, offended free press and hence, due process under the Fourteenth Amendment are as follows.

And as I say, we have indicated in our -- in our -- in an appendix to our brief, references to official reports made by a commission of the County Los Angeles on human relations, a commission especially set up in order to investigate racial tensions and attempt to alleviate them.

Justice Felix Frankfurter: May I ask, as the matter of fact, whether you're suggesting or just allowable to draw the inference from the record that this ordinance is applied only to situations like this, like the (Inaudible) case, is this the (Inaudible) problem also?

Mr. A. L. Wirin: No.

I am not even contending that it is applied -- that the ordinance is always applied though we know -- have no knowledge about the application to raise racial matters.

I am merely contending that whatever may be the application of the ordinance to other persons under other circumstances, the application of this ordinance to this petitioner under these particular circumstances, offends due process of freedom of the press.

And in connection with that, the limited argument though, we will also, in a moment, challenge the ordinance on its face, but at the moment, I'm merely arguing the ordinance as applied.

We have called to Your Honors' attention incidents of racial tension which appear, as I say, in the appendix and which are to the general effect that there have been instances of a mob action against, it appears for instance on page 13 of our memorandum, against -- against Negroes.

There have been attempted arson cases against persons of the Negro race.

There has been -- we do not claim that -- that Los Angeles is Little Rock.

We do not claim that California is Arkansas.

We do not claim the kind of tensions which we set some communities have appeared in the violent and -- and such serious form in Los Angeles.

But we do say that the record does show from the finding of this Commission that there had been cross burnings and egg throwing and smashing of windows and the setting of -- of fires.

Justice John M. Harlan: Is that before the state court?

Mr. A. L. Wirin: It is -- it is not proof before the state court.

It is a matter which was proffered as a part of our argument to the court below, and it is a matter which is set forth in official documents of the Commission with -- the originals of which we have filed with the clerk of this Court and which are summarized in the appendix to this brief.

Justice John M. Harlan: (Inaudible)

Mr. A. L. Wirin: Yes, indeed.

Justice Charles E. Whittaker: Mr. Wirin.

Mr. A. L. Wirin: Yes, sir?

Justice Charles E. Whittaker: May I ask you, didn't that (Inaudible) makes his identity known?

Mr. A. L. Wirin: Yes.

Justice Charles E. Whittaker: Do you think (Inaudible)

Mr. A. L. Wirin: Yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. A. L. Wirin: Yes.

Justice Charles E. Whittaker: Now, is more required by (Inaudible) in that?

Mr. A. L. Wirin: There is in this respect.

When a person speaking from the stand, he ordinarily speaking in -- in either in broad daylight or at least where he can be seen and where persons are about in.

The vice of this ordinance if it is assumed that these -- that these leaflets do not comply with it, these leaflets do have a post office address and do have a telephone number, as which the person may be reached.

The vice of this ordinance is that it requires a person, not only to identify himself when he is addressing the group, as the speaker does all the walking, the speaker had a -- in high park or in a public square may not even identify himself, he gets up and talks and the group --

Justice Charles E. Whittaker: But you see him.

Mr. A. L. Wirin: But you see him.

Justice Charles E. Whittaker: He appears.

Mr. A. L. Wirin: But the problem here is that if this petitioner left his address, which this ordinance requires on the leaflet, he would be giving information to those who are unfriendly to him which information could be used by them.

When he isn't at his home through vandalism at night and through acts of reprisal which could be visited upon him in a manner which are not visited ordinarily upon a person at a place where he is making his public speech.

And so what we are saying is that in this instance, under these circumstances, the strict requirement of this ordinance go beyond any necessity and in beyond any justification because it requires the person who distributes the ordinance to indicate where his address is at which a cross maybe burned at night at which eggs maybe thrown at night or at times when he isn't there.

Justice Charles E. Whittaker: Would you think that in a case where some one man, as I understand it, this is one man --

Mr. A. L. Wirin: Yes.

Justice Charles E. Whittaker: -- started the handbill campaign against you or one of your clients in which he spoke falsely and viciously argued and yet being -- you know means to know he was so that you might enjoin or stop that conduct which you say then the same as you say now?

Mr. A. L. Wirin: I would not.

I would agree that an ordinance which is narrowly drafted to deal with particular situations as for instance with the matter -- with the matter of - of libel might and could very well be valid whereas an ordinance which is drafted as broadly as this one, namely, which proscribes the distribution of handbills under any circumstances, any place in the city, that such an ordinance is first to sweeping on its face.

And then, because it is sweeping on its face and permits the kind of prosecution in this case, violates due process in application.

But I will say to Your Honor that this particular matter that you are questioning me about is a manner about which my young colleague has been preparing for some days, and I would like now to reserve some time for -- for rebuttal and yield to him, with the admonition to him, that he begin by answering more fully or well, more adequately, the question which Your Honor just propounded to me.

Justice John M. Harlan: Can I ask one question before you sit down?

Mr. A. L. Wirin: Indeed.

Justice John M. Harlan: Was there a proof offered as to this particular distributor to your client that he's been threatened or --

Mr. A. L. Wirin: There was none.

Justice John M. Harlan: None.

Mr. A. L. Wirin: There was none.

It is a matter which we call to the Court's attention as a matter of common knowledge --

Justice John M. Harlan: As a general matter.

Mr. A. L. Wirin: As a matter of common knowledge in the community and which we are calling to your attention, as a matter of common knowledge in the community through official reports of the commission.

Argument of Hugh R. Manes

Mr. Hugh R. Manes: Mr. Chief Justice, may it please the Court.

Now, it's conceded by the City that the distribution of noncommercial handbills is a constitutionally protected right.

This is so, it is our contention that anonymity is also entitled to constitutional protection since anonymity may be necessary for the circulation of speech and ideas and hence to the exercise of a First Amendment right.

Now, historically, there are practical and historic uses of anonymity.

It has always been or frequently has been invoked to protect the speaker and the author from reprisal during the struggle for religious liberty.

Anonymity was vital to the expression of ideas if only to gain entrance to the forum of opinion and if only to be heard.

Now, very frequently, the churches of those days attempted to expose heretics by requiring that the names be put to what they right and much the same fashion as this ordinance has drawn here.

Even today, the non-conformant -- non-conformant as the heretic has frequently found it necessary to foster his ideas anonymously in order that he may be heard and indeed in order that he may earn a livelihood.

I have reference to the fact that we find it a common practice for blacklisted writers in the entertainment industry to -- to write anonymously or under a fictitious name in order to earn a livelihood.

So, here are some practical consequences of the use of anonymity.

But in any event, we contend, that it remains for the author and for the speaker to set the conditions under which he will speak or express his ideas that if he is going to -- go into the market place of ideas to -- to buy for the contention for -- for public acceptance of his idea, it must be left to him to -- to decide whether he will incur the risk of facing a hostile community, that community hostile to his ideas anonymously or by identifying himself.

Justice Felix Frankfurter: Have you considered the (Inaudible) the other way around in which this Court sustained the statute requiring disclosure by newspapers of the owners and the shareholders?

Mr. Hugh R. Manes: Yes, Your Honor.

We have considered that.

And we think --

Justice Felix Frankfurter: And -- we think -- you don't think that qualifies this absolute statement of yours about the right to anonymity.

Mr. Hugh R. Manes: I say, Your Honor, that we do not contend that the right to anonymity is an unlimited right by any means.

We say that there are kinds and circumstances when anonymity -- when the State has a right to limit anonymity.

We say only that it cannot be an unlimited right to suppress anonymity or the right to anonymity so completely and so broadly as is done here.

Now, in the Lewis case, the Lewis case, the Congress had determined under the exercise of its postal powers, expressed authority, that there was a particular evil involved and that -- that evil attempted to meet by imposing a condition on the exercise of the second class mailing privilege.

It was imposing that condition on a commercial profit making venture which is very much unlike our particular leaflet here.

Justice Felix Frankfurter: If -- if Tom Paine had published his common sense as a periodic and sought to send it through the mail, he would under the Lewis case, as I understand it, have to disclose who own his paper.

Mr. Hugh R. Manes: Who owns his paper --

Justice Felix Frankfurter: Who owns --

Mr. Hugh R. Manes: -- but not necessarily --

Justice Felix Frankfurter: (Voice Overlap) and whoever stockholders -- and whoever stockholders, well, that --

Mr. Hugh R. Manes: Yes.

But not --

Justice Felix Frankfurter: Suppose -- suppose the writer is a stockholder and the owner, then he would have to disclose --

Mr. Hugh R. Manes: But he -- but he -- excuse me, Your Honor, but he discloses the publisher -- as a publisher the right --

Justice Felix Frankfurter: You got to disclose more under the statute than that.

Mr. Hugh R. Manes: But the writer --

Justice Felix Frankfurter: (Voice Overlap) stockholders, the officers --

Mr. Hugh R. Manes: Yes, sir.

Justice Felix Frankfurter: -- people who really run the show and own it.

Mr. Hugh R. Manes: That's correct, Your Honor, but the fact remains that the writers of the articles within the newspaper are not compelled to be disclosed.

There is no requirement that they be disclosed.

Justice Charles E. Whittaker: What relevance is that -- in fact that those who (Inaudible) in this proposition are still anonymously or as I understand this argument, it simply requires that one who is circulating a handbill in which he may say anything he likes, he should be in anyplace he wants, must say (Inaudible) and second, caused it to be distributed.

Mr. Hugh R. Manes: Yes.

Justice Charles E. Whittaker: (Voice Overlap) isn't that what it does?

Mr. Hugh R. Manes: That's -- that's what it does.

But its impact, it has a farther reach, Your Honor, because what we are trying to suggest to the Court is that there are times and circumstances when speech can only be freely uttered anonymously or if -- if the author or the speaker remains anonymous, so that he does not leave a trail to the door for those who are hostile to his ideas, we are suggesting furthermore, Your Honor, that as the matter of -- of freedom, he retains the right to determine under what circumstances he will utter speech, unless that there is a prevailing or a paramount -- a countervailing societal interest involved.

And we are suggesting that the only countervailing interest which the City is claiming here is simply to purify speech.

And we suggest to the Court that this cannot be a -- a valid justification for requiring everybody under all circumstances at all places to disclose their identity when they have something to say.

Justice Charles E. Whittaker: You want to say that the City's purpose and sole purpose of this ordinance is to purify (Inaudible)

Mr. Hugh R. Manes: I don't say that -- I don't say that that is the sole purpose.

They relate -- they advert to the objectives of this ordinance as being limited to fraud, being limited obscenity or pornography, being limited to libel and -- and the like.

But the ordinance says nothing of this kind.

It is broader and so in order to justify the lawful -- the coverage of lawful speech, the -- the City comes back and says as to lawful speech, it's better that it'd be -- that it'd be labeled like peas and garments.

So that, we may evaluate the -- the idea by knowing who said it.

And I suggest to the Court that this is a -- this kind of a doctrine has a lot of danger.

Justice Charles E. Whittaker: The words you get from this ordinance is (Inaudible) that -- and -- that the City's (Inaudible) to evaluate the ideas.

Mr. Hugh R. Manes: Yes, sir.

Justice Charles E. Whittaker: I understand from this ordinance, you'd be handled, you may say anything you like, whatever you like, whenever you like so long as you shows on it, who created it and distributed it.

Mr. Hugh R. Manes: Yes, Your Honor.

But the fact remains that on page 16 and 17 of the City's brief, they make the contention that it is to the further purpose or the further objective that might justify this ordinance is to purify speech, and I quote from the brief, that it -- the one sentence from the brief, the middle of page 16, “by identifying the person interested in distributing a pamphlet, the tenure of the comments take on new meaning.”

For example, a leaflet circulated by -- is (Inaudible) would have a decidedly different import than the same remarks decimated by Robert Hutchins or Cardinal Newman or (Inaudible)

Now, I simply suggest an answer to that contention, Your Honor, that this is not the kind societal interest which may justify this ordinance because if you're going to clear up the market place of ideas with names vying for contention instead of ideas, then people will begin to look to who said what rather than to what they themselves should be believing and listening to.

Now, it's our contention further, Your Honor, that in connection with some of these other areas where the City, where the States, where the Congress has in certain -- certain circumstances required disclosure.

As for example, in the Harriss case which this Court recently had before it involving the -- the involving the question of requiring a lobbyist to disclose his -- his affiliations with the organization that he was representing.

There again, we're dealing with a -- an individual who is paid to influence legislation and who is influencing legislation directly with the -- with the legislator involved.

And I call attention to the fact that in this particular instance, not only was Congress limiting itself to a specific evil but indeed, in order to preserve the constitutionality of that particular statute, this Court found it necessary to further limit the scope of that particular statute so as not to impinge upon the dissemination of ideas.

The City has also made reference to another area where disclosure may be required and that is the area involving corrupt practices whereby States, like, incidentally, California, Section 5005 of the education -- of the Elections Code which requires that the -- which requires that the circulator of a pamphlet or of a hand bill identify himself and his name and his address, where his bill is aimed at the defeat of a candidate.

Here again, the -- the States involved are aimed at preserving other fundamental freedoms.

And again, is limited narrowly to a particular evil.

But what we suggest here is that there is no valid basis once you have conceded that, as in this particular pamphlet, that advocacy of an idea is lawful that that particular individual who disseminates that idea should have the right to determine for himself the conditions under which he will advocate that particular idea.

And he has chosen here to advocate it anonymously perhaps, because of the reasons, Mr. Wirin's suggests or perhaps, for his own -- for other reasons which -- which he may have determined, which I don't think our -- our particular important as long as he has not expressed an idea which -- which affronts the ordinance.

Now --

Justice Charles E. Whittaker: Now, this -- may I ask?

Is this is a type of a handbill that the (Inaudible) to this ordinance?

Mr. Hugh R. Manes: I suppose that it would be covered by the ordinance, Your Honor.

Justice Charles E. Whittaker: Suppose that from persons irresponsible wise but able (Inaudible) handbills libel in certain candidates, how the public judge, whether they were from responsible or irresponsible people unless the identity of the authors or distributors are known.

Mr. Hugh R. Manes: Well, in the first place, Your Honor, according to the dissenting opinion in this case, there has not been that much of the abuse.

But even if that were true, what we are contending, Your Honor, is that if this is the kind of evil at which the City is interested in aiming its -- its legislation, it should say so.

It should not have a broad ordinance which covers -- which goes beyond that particular objective.

Justice Felix Frankfurter: Do you mean if there were recitals setting forth that in view of the fact that as the City of -- where is this?

Los Angeles?

Mr. Hugh R. Manes: Los Angeles.

Justice Felix Frankfurter: In the view of the fact that the City of Los Angeles during the last 10 years or five years has had experience with the abusive exercise of -- of anonymous flyers in the sense that -- that libelous doctrine has been circulated for questionably libelous stuff or other -- in otherwise offensive?

Mr. Hugh R. Manes: No.

Justice Felix Frankfurter: We deem it in the balance of considerations desirable that if --

Mr. Hugh R. Manes: I don't think that mere finding --

Justice Felix Frankfurter: -- do you think that would make a difference?

Mr. Hugh R. Manes: I don't think that mere finding --

Justice Felix Frankfurter: But you just said that the City should say -- they should've said so if that was its purpose.

Mr. Hugh R. Manes: No, Your Honor.

What I say --

Justice Felix Frankfurter: It can contribute to that.

For the first time, we must -- was distributed.

Mr. Hugh R. Manes: I don't think that findings can save an ordinance by themselves.

Justice Felix Frankfurter: No.

Mr. Hugh R. Manes: What I'm suggesting --

Justice Felix Frankfurter: In the absence of it -- the absence of it cannot illegalize it when presence worth.

Mr. Hugh R. Manes: Not necessary but the fact here is that we don't have an ordinance that is in any way limited to the objectives which the City is claiming for it.

The City says that this ordinance is aimed at libel, it's aimed at -- it --

Justice Felix Frankfurter: It says impliedly.

Mr. Hugh R. Manes: It's a -- it's aimed at obscenity.

But the fact --

Justice Felix Frankfurter: If impliedly.

Mr. Hugh R. Manes: That's correct, Your Honor.

Justice Felix Frankfurter: After all, even city council or whatever they call it in Los Angeles, pass ordinances for some purpose and not nearly out of whim at least, we must make such attribution.

Mr. Hugh R. Manes: That's true.

But the police officer did not find himself limited by those objectives and there is no contention here either by the City nor by the court below that this ordinance said anything that was unlawful in California.

The ideas that are advocated in this particular pamphlet were lawfully expressed and were lawful ideas and he had the right to say them, anonymously or otherwise.

Justice Felix Frankfurter: But if -- if a statute or an ordinance, the legal enactment may cover things which it may cover, it may in order -- in the interest of enforcements sweep in -- sweep within itself things that are innocent.

Mr. Hugh R. Manes: Not where a speech is concern, Your Honor.

I don't believe --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Hugh R. Manes: -- that an ordinance can be justified -- can be justified where it compasses speech unnecessarily, unless there --

Justice Felix Frankfurter: No matter -- no matter how small or no matter how grave the abuse with which it is dealt --

Mr. Hugh R. Manes: Well, as this --

Justice Felix Frankfurter: -- because of the difficulties of proving.

Mr. Hugh R. Manes: Well, as this Court has often said, You Honor, mere convenience cannot server to justify --

Justice Felix Frankfurter: I'm not talking about convenience --

Mr. Hugh R. Manes: -- the unconstitutional infringement on speech.

Justice Felix Frankfurter: -- I'm not talking about convenience, I'm talking about balancing considerations justifying an ordinance which, in a particular case, may not cover the abuse which justify an ordinance.

Mr. Hugh R. Manes: I can only say, Your Honor, that -- that in those particular circumstances, if you're going to allow the City to make small encroachments on speech, then soon, those small encroachments will be brought into larger ones.

Justice Felix Frankfurter: (Voice overlap) of valid statute that is constitutional as an encroachment on speech.

I don't think in those terms, if it's valid it is an encroachment.

Mr. Hugh R. Manes: But --

Justice Felix Frankfurter: (Voice Overlap) the recognition of a public interest as against some private interest.

Mr. Hugh R. Manes: But it can't be valid if it encompasses lawful speech and that was our point, Your Honor.

Justice Felix Frankfurter: Of course, if it's not valid, it can't be valid, absolutely.

Justice Charles E. Whittaker: (Inaudible) encompasses, you mean if it restricts or inhibits?

Mr. Hugh R. Manes: Well, if it -- yes, if it inhibits lawful speech of (Inaudible)

Thank you, Your Honor, I want to reserve the rest --

Justice Felix Frankfurter: A lot of things that inhibit lawful speech or the right to keep silent, doesn't it -- aren't they?

Mr. Hugh R. Manes: Oh, there are certain times.

Justice Felix Frankfurter: You and I are subjected to.

Mr. Hugh R. Manes: There are certain --

Justice Felix Frankfurter: You and I are subjected to.

Mr. Hugh R. Manes: There are certain --

Justice Felix Frankfurter: Everyday, to restriction -- and I wish to do what we please, even as to utterance or silence.

Mr. Hugh R. Manes: But always justified by the circumstances of time and place.

Justice Felix Frankfurter: So that is -- so that's, the real question, isn't it?

Mr. Hugh R. Manes: Yes, Your Honor.

Justice Felix Frankfurter: Justification of this.

Mr. Hugh R. Manes: Yes.

Justice Felix Frankfurter: That's the real issue, isn't it?

Mr. Hugh R. Manes: That is the issue, Your Honor.

Justice Felix Frankfurter: All right.

Chief Justice Earl Warren: Mr. Grey.

Argument of Philip E. Grey

Mr. Philip E. Grey: Mr. Chief Justice, may it please this Court.

It has been stated by members of this Court in various cases, the First Amendment to the Constitution embraces two concepts, first, freedom to believe and second, freedom to act.

The first is absolute but in the nature of things, the second cannot be conduct remaining subject to regulation for the protection of the society.

Over a period of time and in accordance with the various opinions rendered by this Court, and other appellate courts, the City of Los Angeles has attempted to regulate the exercise of that right in connection with free speech and press in order to protect the general public from various evils which have from time to time become apparent to the members of the City Council.

This Court may recall in 1939, in Schneider versus Irvington, a California -- a Los -- a Los Angeles City ordinance was involved in the Kim Young section of that opinion.

Thereafter, that ordinance was amended to comply with the opinions of this Court.

The original ordinance was broad, prohibiting the circulation of any type of handbill within the City upon public streets or parks.

Thereafter, it was amended to only cover the commercial handbills.

In other series of ordinances were reexamined that had been on the books.

Some of them related to the distribution of commercial handbills to automobiles getting out on the streets and interfering with traffic.

Another type of an ordinance dealt with going onto private property where the tenant had play or posted signs stating that, no advertising.

In accordance with the various opinions rendered, we reenacted all our ordinances.

In order to answer Justice -- Mr. Justice Brennan's opinion, the legislative history and municipalities and cities, of course, is very lenient.

We were able to find out that prior to 1931, an effort was made by the local Chamber of Commerce, urging the City Council to do something about these handbills and advertising matters which were false and misleading, had no names of sponsors.

They were particularly interested in the fictitious name.

They said, “Who are these people that are distributing, who are advertising, doing things of that sort?”

The legal record that were able to find indicates that a request from the Council to the City Attorney as to their legal opinion on this subject.

The City Attorney wrote back and formed a conclusion that distribution of handbills, pamphlets or other matters, without the name of the fictitious firm or officers would be legal.

Thereafter, in the early part of 1932, an ordinance was drafted, submitted to the City Council and approved by then which related to the original subject, unlawful for any person, firm or association to distribute in the City of Los Angeles and the advertisement or handbill or any other matter which does not have the names of the sponsors or of such literature.

Then in 1936, the various ordinances were reenacted into a code.

At that time, the word “commercial” was left out were it had said commercial handbill or advertising, so that the ordinances remained on the books since originally 1932 to 1936.

Then I might say that this is -- the Talley case is the second case that has ever come before any of the courts is -- on the appellate level.

The first case being, People versus Arnold which is referred to on the briefs and cited as 127 Cal. App. 2d at page 484.

Justice William J. Brennan: Mr. Grey, do you think that these handbills we have here are commercial?

Mr. Philip E. Grey: No.

We do not so contend.

Justice William J. Brennan: But you said that they dropped the word “commercial” --

Mr. Philip E. Grey: Yes.

Justice William J. Brennan: -- from this ordinance in the 1936 codification?

Mr. Philip E. Grey: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Philip E. Grey: No.

The thought that we -- the only reason that we can come up with an answer or reason for that being that they felt that all handbills should have this protection that we seek to give to the general public who is responsible for disseminating this information, whether it'd would be commercial or others.

Justice Felix Frankfurter: Was commercial and -- the original ordinance?

Was commercial (Inaudible)

Mr. Philip E. Grey: Yes.

Commercial --

Justice Felix Frankfurter: It was drafted in (Inaudible)

Mr. Philip E. Grey: 1936.

Justice Felix Frankfurter: (Inaudible) necessarily about.

Mr. Philip E. Grey: Yes -- yes.

Chief Justice Earl Warren: I notice -- I notice within the record are some leaflets that emanate from the company which -- which the petitioner was circulating his petition against.

And I notice also that -- that these do not fulfill the requirements of this -- of the --

Mr. Philip E. Grey: That is true --

Chief Justice Earl Warren: -- ordinance anymore than -- than --

Mr. Philip E. Grey: The very first one, Exhibit A, defendant's Exhibit A --

Chief Justice Earl Warren: Yes.

Mr. Philip E. Grey: -- defendant Exhibit B carries with it the name of the printer.

The Court will notice that.

Chief Justice Earl Warren: Well, does that -- does that fulfill the obligation?

Mr. Philip E. Grey: It has the name of the person.

Chief Justice Earl Warren: But doesn't this -- doesn't this one have -- have a name of some organization --

Mr. Philip E. Grey: Yes.

It has one.

Chief Justice Earl Warren: -- unless when it have a post office box?

Doesn't it have a telephone number wherein as that different from -- from these?

Mr. Philip E. Grey: These handbills were offered by the defendant in an attempt to show that the (Inaudible) theory was not being applied.

Chief Justice Earl Warren: But do you --

Mr. Philip E. Grey: We have no proof -- we have no proof that these were actually being circulated by the market.

We did have some testimony offered to indicate that such handbills or similar handbills had been seen posted in the market itself.

Chief Justice Earl Warren: Do they -- do they enforce it as against this kind of -- of leaflet?

Mr. Philip E. Grey: I, of my own knowledge, have very little information as to the number of arrest made under this particular ordinance.

And as I have started to say that to my knowledge, this is the second time that this -- this ordinance was brought before the Appellate Department or -- that I know of.

Chief Justice Earl Warren: Isn't it rather common way for -- for some stores to advertise their sales and so forth by -- by leaflets like these was the -- merely was the name of the store, not the name of any orders or -- or anybody else connected with it?

Mr. Philip E. Grey: I think that is generally true and I think that they generally have the name of the printer and they know that they seem to be indicating that they are distributed by this company, the market or whoever it might be to that sense.

Chief Justice Earl Warren: Well, in other words -- in other words, if the -- if the police feel they know who put these things out, they don't pay any attention to the ordinance and if they -- if they don't, why they do, is that correct?

Mr. Philip E. Grey: I cannot answer that.

I don't know what the police -- how they had been enforcing it.

I know that there have been very few cases on this particular code section.

Chief Justice Earl Warren: How old is the ordinance?

Mr. Philip E. Grey: Originally, 1931 and then codified in 1936.

The Appellate Department initially, when this matter came --

Justice William J. Brennan: May I ask you if the codification involves reenactment, does it, of the code?

Mr. Philip E. Grey: Yes.

They took all the old ordinances.

They were numerous and put them into a code whether this was a typographical error or printers error and leaving a word out, we have no way of knowing at this time.

There isn't just --

Justice William J. Brennan: Well, I just -- and when they are put together as a code, is then the code originally enacted as a code?

Mr. Philip E. Grey: And the original Sections are continuations of the original ordinances.

Justice William J. Brennan: Yes.

Mr. Philip E. Grey: There's always a savings clause.

I did want to call the Court's attention to the fact that in this matter, the grounds of appeal offered to the Appellate Department of the Superior Court are found on page 26 of the transcript of the record.

And they are, upon which the defendant of the appellant here are relied, first, that this -- this Section is unconstitutional in that said code section of bridges of defendant's freedom of speech and thus in violation of California state law and of the United States federal laws with regards to freedom of speech.

They also made second ground that there is unequal enforcement of law in the application of this Section to the defendant that on the account of and because of the unequal enforcement.

The attempt that's -- to which I just eluded was made in the trial court and as the Court will read the record which is very scanty.

In fact, the entire record was -- the People's case was stipulated to between counsel that this appellant was distributing these particular handbills.

The handbill bears on its face, the name of a so-called fictitious firm, organization or group, the National Consumers Mobilization.

Justice Charles E. Whittaker: (Inaudible) one man?

Mr. Philip E. Grey: No, sir.

We do not know.

There was no evidence presented at the trial court level.

We have no way of determining that.

We do not know.

There was no evidence to -- presented to tell us whether Mr. Talley was the printer of this article, whether he is the National Consumers Mobilization, whether he was merely the distributor, we have nothing in the record.

Justice Charles E. Whittaker: I gather that Mr. Wirin's argument (Inaudible) the record doesn't show it.

Mr. Philip E. Grey: The record does not show.

He was charged in the complaint with distributing a handbill which failed to have these various things on them.

Justice Charles E. Whittaker: (Inaudible)

Mr. Philip E. Grey: Yes.

Justice Charles E. Whittaker: Do you think that's (Inaudible)

Mr. Philip E. Grey: We think that's quite important.

Here is a National Consumers Mobilization of this list, “Is not the public entitled to know of whom this organization is composed?

Is it one man?

Is it a group of man?

Are they prominent citizens?

Are they sincere people?

Are they competitors of this particular market place?

Who are they?”

That is all we seek to establish, so that, originally, the only argument was the constitutionality.

Statements have been made here that now, they -- they are urging that this is unconstitutionally applied.

No effort was made in the trial court to show the circumstances under which Mr. Talley sought to distribute these handbills.

No evidence of any kind.

We had a statute and as indicated by the appellate court in the -- their opinion in Talley.

They make reference.

Appellant concedes that the decision rendered by this Court in People versus Arnold disposes of his connections adversely but asks reconsideration and reversal of -- of the view there taken submitting substantially the same brief that was submitted to that Court.

That was the issue before the Court and the Court had rendered its opinion in People versus Arnold upholding the constitutionality of this ordinance saying that there was no prior restraint, no censorship requirements, a person still has the right to freely say, speak, write, whatever he wants.

All that the City was requiring was some person who is responsible, who is the person that is exercising this right.

Justice Hugo L. Black: Is that the sole point, as you see it, that has to be decided?

Mr. Philip E. Grey: I think so.

On the face of the ordinance, we are not --

Justice Hugo L. Black: Suppose the ordinance attempted to bar the distribution of the handbill (Inaudible) what would you say?

Mr. Philip E. Grey: I would say that would be wrong.

I think that if we -- we don't want to get on --

Justice Hugo L. Black: It's entirely on the fact if we have -- rather presented and as you see it, the question of whether the right to distribute anonymously, he has the right protected by the Constitution?

Mr. Philip E. Grey: No.

I've -- now, we're saying this word right to use it anonymously.

First, we have to assume then, that Mr. Talley was the man who wrote this, that he does not want to put his name on it.

Justice Hugo L. Black: Well, that -- without getting into to the fact, I was trying to find out if that is really what we have to concern, will the Constitution protects anonymity in writing?

Is there anything in it -- any other purpose such that, as you see it here?

Mr. Philip E. Grey: I think the only question that we -- that this Court has called upon to decide is, such an ordinance is this, not a reasonable ordinance, which regulates the manner of the constitutional right of freedom of speech and press.

Justice Hugo L. Black: Well, is -- is your argument is based on anything whatever except the anonymity of the -- of the handbill?

Is there any other vice in it that says --

Mr. Philip E. Grey: No.

No.

I don't think so.

Justice Hugo L. Black: So far as -- so far as you're concern, if it was signed in view of the opinion that the ordinance was delayed, it's up for them to decide.

Mr. Philip E. Grey: No.

We said if the handbill had some name or the names of the officers, the person who distributed.

Justice Hugo L. Black: It wouldn't violate the ordinance, would it not?

Mr. Philip E. Grey: No.

Justice Hugo L. Black: Are -- are you basing your argument on the fact that if the ordinance did not require his name, suppose he just bars on the entirety?

Mr. Philip E. Grey: Then we say that that ordinance was unconstitutional.

If the ordinance had no person shall distribute any handbill, we --

Justice Hugo L. Black: (Voice Overlap) in hope with your argument.

Mr. Philip E. Grey: That's right.

We say that this ordinance does not do that, however.

We have said this ordinance does not affect the right to exercise your right of freedom of speech or press.

All we say is --

Justice Hugo L. Black: Suppose -- suppose it does affect, doesn't it --

Mr. Philip E. Grey: Well --

Justice Hugo L. Black: -- affect it whether -- whether a man can be required to put his name on such an article if he wants to (Inaudible)

Mr. Philip E. Grey: The -- the ordinance does not require that the author put his name on.

Justice Hugo L. Black: Well, I mean is that, if he had named that, so that it can be traced.

It's in line, isn't it, with the general statutes throughout the country that in election, certain distribution of literature or what the name -- the name of the person who is responsible?

Mr. Philip E. Grey: That's right.

Yes, we think it's in line on all of those cases.

Justice Charles E. Whittaker: (Inaudible)

Mr. Philip E. Grey: Yes, to protect the general public.

Justice Charles E. Whittaker: (Inaudible)

Mr. Philip E. Grey: To identify it -- to make a person responsible.

Justice Charles E. Whittaker: (Inaudible)

Mr. Philip E. Grey: We think this -- in petitioner's own brief, he -- he quotes very, very pertinent language to me.

He said, “It is certain that every man has a right to keep his own sentiments if he pleases.

He has certainly a right to judge whether he will make them public or commit them only to the side of his friends.”

That's what we say here.

If a man wants to speak, and he gets it before an ordinance, he is known, you can see who he is.

If he wants to write, he is free to write.

That reminds me of a situation, I don't know whether the members of this Court are aware of what happened.

Several months ago, in the City of San Francisco, there was such a campaign of handbills at a particular time as strategic points in the various part of the City, where the City was flooded with thousands of handbills attacking the Mayor and the Commissioner unsigned by the time he could gather these handbills, who distributed them, who caused them to be distributed was never known.

Now, we understand that there is a reward offered leading to the apprehension of the persons who did that.

Must the law resort to that type of thin?

We think not.

We think our ordinance is reasonable under this requirement that it does not curtail freedom of speech at any manner and that anonymity is not a guarantee --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Philip E. Grey: -- of freedom of speech.

Justice Hugo L. Black: I understand your other argument.

I -- I do not say it's irrelevant to this.

I do not understand how you see it.

It does not restrict or regulate freedom of speech, whatever.

Mr. Philip E. Grey: Well --

Justice Hugo L. Black: It certainly would have made the unions criminal, wouldn't it, or the letters of unions?

Mr. Philip E. Grey: Well --

Justice Hugo L. Black: If they were distributed on the street.

Mr. Philip E. Grey: May I say this.

Justice Hugo L. Black: I'm not saying that -- I'm not saying a quick way our Constitution goes on.

But it seems to me that is your question.

Mr. Philip E. Grey: We'll -- reference has been made to the historical items of anonymous writings.

I think, (Inaudible) say this, “Today, we have a constitutional right to freedom of speech.

We don't have to write secretly, we don't have to be ashamed or hide or whether being ashamed of what you write is something else, again, that's personal.

But if you don't want to express your views, no one is forcing you to say what are you thinking, tell me what you're thinking, you must tell me.”

Justice Hugo L. Black: But it would.

You'd had to admit, I would think, that you face it squarely, that it does can to restrict in some answers with the expression of views on public questions or questions they wouldn't discuss and it does tend to restrict.

Your problem is does the Constitution forbid the passage of such a law.

Mr. Philip E. Grey: We'd say no.

Justice Hugo L. Black: Well, that -- that is the real -- I don't -- maybe there is another one but I don't see it.

Mr. Philip E. Grey: We say that the constitutional right is to, for person freely to do it, to identify himself, to be responsible for what he says.

Justice Hugo L. Black: You said he is not protected from --

Mr. Philip E. Grey: Anonymous writings --

Justice Hugo L. Black: -- inserting anonymous view.

Mr. Philip E. Grey: That is what --

Justice Hugo L. Black: But I think that's probably raised and other statutes decided this (Inaudible)

Mr. Philip E. Grey: I think that's true.

I have no --

Rebuttal of A. L. Wirin

Mr. A. L. Wirin: May it please the Court.

First, with respect to a question put to Mr. Grey by the Chief Justice, with respect to the other leaflets which were introduced in evidence, the leaflets are the very market which was being opposed by these practices we're concern.

Clearly, they were a violation of the letter and the requirements of the ordinance.

One of them had no identification of any kind.

There was a stipulation that in the supermarket was a -- was a fictitious or organization that's in the record and that Mr. Grey says, well, the second one, had the name of the printer but to comply with this ordinance, you have to, not only have the name of the printer and its address, but also the name of the distributor or distributors and their address.

So, clearly there was -- there was no complain.

Now, let me move on, however, to more -- perhaps not maybe --

Justice Potter Stewart: Before you move on, Mr. Wirin.

Mr. A. L. Wirin: Yes, sir.

Certainly.

Justice Potter Stewart: May -- I'm looking at the ordinance and as I read it, the handbill has to comply with both (Inaudible) (a) and (b).

Mr. A. L. Wirin: I would believe so.

Justice Potter Stewart: And (a) requires that the name of the printer or the writer or the compiler or the manufacturer of the handbill.

Mr. A. L. Wirin: That's true.

Justice Potter Stewart: That's in the disjunctive, isn't it?

Mr. A. L. Wirin: That -- I -- I would say that's in the disjunctive.

Justice Potter Stewart: And presumably then, in the conjunctive, it also requires that the person who caused the same to be distributed beyond him --

Mr. A. L. Wirin: Yes.

Justice Potter Stewart: -- not the distributor, the --

Mr. A. L. Wirin: That -- that's true.

But I will also say, though I don't know what I'm answering your question, that the last clause in (b), probably applies also to (a).

In other words, if either the writer or printer or the distributor or the one who cause the distribution is a volunteer association or a nonliving identifiable person, that there must be a statement of who the persons are and their addresses.

Justice Potter Stewart: That would be strange reading of it, wouldn't it?

Mr. A. L. Wirin: Would it?

Justice Potter Stewart: Period at the end of a (Voice overlap) --

Mr. A. L. Wirin: Well, I -- I have troubled enough -- I have troubled enough without using a strange reading and then so I'll -- I'll not make that argument but go on -- go on to another.

Now, then, I think now, Your Honors, there is a serious difference in -- in our understanding and in the City's understanding of the effect of the First Amendment with respect to legislation, and I'll try to clarify the difference and understanding by stating our position.

We take the position that an ordinance which is directed against the expression of opinion must be drafted more narrowly than an ordinance which is directed against other matters.

We say that with respect to the expression of opinion, freedom is the rule, exception abuse that -- restraint of the exception.

We say that if a city wants to deal with the problem of the distribution of leaflets during election campaigns where there may be an abuse, it must draft an ordinance which is directed toward that specific or nearly related abuse.

And if a city or any other State or the Congress wants to deal with a situation to a particular abuse like lobbying, it must draft an ordinance directed -- directly towards that specific view, the matter of lobbying, and to return to Mr. Justice Whittaker, if it -- if a city or Congress wants to limit the expression of opinion in situations involving libel by requiring identification, the ordinance must be narrowly drafted directed to that evil.

And we do not agree --

Justice Felix Frankfurter: That -- that means that if any -- any trial, any leaflet is libelous, then you must disclose the name.

I think that would be a ridiculous ordinance.

Mr. A. L. Wirin: Well, let -- if -- but -- but let me just make my generalized statement that is, we do not agree that an ordinance which is broad and pervasive and comprehensive in as restraint upon opinion and hence can be applied as it was in this case as to this -- as to this petitioner is valid even though the ordinance more narrowly drawn could legitimately and without violating the First Amendment had directed itself towards specific evils.

Justice Felix Frankfurter: May I say your generality done is too specific.

Mr. A. L. Wirin: Indeed.

Justice Felix Frankfurter: If the statute says or -- or a legal enactment says, “Our experience is that libelous leaflets often circulated by people whose responsibility cannot be traced because the use of fictitious name, therefore, we enact the following and the present statute.”

Would that be narrow or broad in your case?

Mr. A. L. Wirin: Well, in -- in my opinion, the -- the ordinance would have to be directed towards the evil.

Justice Felix Frankfurter: Don't -- don't talk generally.

Just answer my question whether the recital said we have had experience with the inability to strive for responsibility to the -- to the distributors of libelous leaflets, therefore, we enact the following to which this specific ordinance --

Mr. A. L. Wirin: I will answer your --

Justice Felix Frankfurter: -- is that specific or not?

Mr. A. L. Wirin: It would not be specific.

Justice Felix Frankfurter: Why not?

Mr. A. L. Wirin: In other words, Your Honor, it would be our position that the ordinance upon its face should also be narrowly drafted.

Justice Felix Frankfurter: Well, how can it be more narrowly drafted than to say in order to bring to book, people who scatter like those leaflets, the responsibility for the scattering should be disclosed, how it could be more narrow than that?

Mr. A. L. Wirin: Because this -- this ordinance is -- is drafted so broadly as to sweep within its ambit, persons who distributed leaflets that are in no way connected with the alleged evil of libel.

Justice Felix Frankfurter: But -- but -- I come back then, but don't you think that it would be ridiculously to pass an ordinance saying, “All persons who scatter libelous leaflets should disclose their responsibility.”

Mr. A. L. Wirin: That would --

Justice Felix Frankfurter: That would be a mockery of legislation.

Mr. A. L. Wirin: That would be a ridiculous.

But an ordinance could say that leaflets which pertained to or make comment upon other persons shall have the name of the author or publisher or distributor appear upon it.

And indeed, that or they put it this way, originally, this ordinance was limited to a particular evil, the matter of commercial organizations engaging in false advertising.

Justice Felix Frankfurter: But libels aren't restricted to commercial organization --

Mr. A. L. Wirin: No -- no.

I'm -- I'm moving along.

Justice Felix Frankfurter: (Voice Overlap) probably not of it by commercial organization.

Mr. A. L. Wirin: Of course not.

I'm -- I'm saying that as the matter of fact originally, this ordinance was care -- reasonably carefully drafted, dealing with a particular evil, the matter of false advertising and hence was limited to commercial leaflets.

And of course, if that's where the ordinance remain, we wouldn't have this case.

But when the ordinance was so broad as to encompass the leaflet here, we do have this case and then we gave --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. A. L. Wirin: -- and just --

Justice Felix Frankfurter: -- behind your -- behind your last statement of the implication for which you have warrant what I regard as an unsustainable proposition of this Court namely that commercial utterances have less freedom of less protection by freedom of speech, the noncommercial.

Mr. A. L. Wirin: All right.

Justice Felix Frankfurter: I do not think that that proposition can withstand criticism.

Justice William O. Douglas: I notice (Voice Overlap) --

Mr. A. L. Wirin: Do I have another second --

Justice William O. Douglas: I looked through the briefs of all the both parties and I don't find any discussion of our Valentine case or any citation (Voice Overlap) --

Mr. A. L. Wirin: The reason there is no discussion is because the City concedes that this ordinance does not apply to commercial leaflets and also concedes that a different rule would apply to commercial leaflets than to none -- none -- that to a --

Justice Felix Frankfurter: Do you agree with that?

Do you agree with that?

Mr. A. L. Wirin: I must say I do.

Justice Felix Frankfurter: You do?

Mr. A. L. Wirin: Oh, that --

Justice William O. Douglas: This is not a commercial --

Mr. A. L. Wirin: Oh, no one claims it's commercial.

Now, may -- do I have one second and it so --

Justice Felix Frankfurter: You think commercial utterance in tag of your less protections for utterance are noncommercial.

Mr. A. L. Wirin: Your Honor, I -- I certainly do.

I think the right to discuss political matters --

Justice Felix Frankfurter: (Voice Overlap) to be a greater champion of free speech than that.

Mr. A. L. Wirin: Well, all right, just one pile of word.

It seems to me, Your Honors, that just lately, Mr. Justice Brennan in Smith versus California, Los Angeles ordinance, restored to vitality Thornhill versus Alabama, which says that when an ordinance is directed against opinion, it -- the rule requires that the ordinance should be -- should be narrowly drafted and that a person who is victimized by a prosecution may challenge the ordinance on its face because it affords opportunities for oppression as well as real oppression.

We think we have in this case not only the opportunity for oppression and discrimination but also real oppression and discrimination.

The red light says I should sit down.