HEAD v. NEW MEXICO BOARD

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Argument of Carol J. Head

Chief Justice Earl Warren: Number 392, Agnes K. Head, Lea County Publishing Company, et al., Appellants, versus New Mexico Board of Examiners in Optometry.

Mr. Head.

Mr. Carol J. Head: Mr. Chief Justice and may it please the Court.

This case involves an injunction by the State of New Mexico, prohibiting the appellants from publishing and disseminating certain advertising of a Texas optometrist.

The appellant, Head, owns and publishes in Hobbs, New Mexico a newspaper called the Hobbs Flare.

The appellant, Permian Basin Radio Corporation owns and operates a radio broadcasting station in Hobbs, New Mexico, having broadcast coverage in both New Mexico and Texas as does Mrs. Head's paper.

The following issues are presented to this Court whether the injunction is an undue burden on interstate commerce in violation of the Commerce Clause whether as to the radio broadcasting station the injunction is an incursion by the State of New Mexico into an area that is preempted from state regulation by the Federal Communications Act of 1934.

And thus, whether this incursion is superseded by our -- is violative of the Supremacy Clause.

Thirdly, whether this injunction deprives these appellants the due process of the law in violation of Section 1 of the Fourteenth Amendment, and in this connection, we have two facets to our argument.

The first is that the prohibition against carrying this advertising, there is no real or substantial relation to the end sought to be achieved by the State of New Mexico in adopting this law.

And the other is that this prohibition against these advertising communications media constitutes an abridgement of their right of freedom of the press in violation of Section 1 of the Fourteenth Amendment as the First Amendment is incorporated in the Fourteenth.

Now, in this connection, I want to point out to the Court that the appellee has raised the question as to the right of the appellants to present to the Court the latter issue, we dealt with this initially in our initial brief and we dealt with it more at length in our reply brief, I would like to just raise it now so the Court will not feel that I'm trying to smuggle in as Mr. Justice Jackson once referred to this practice not trying to smuggle in a new issue.

I will develop how this issue gets before the Court at a later point.

Now fourthly, we claim that the injunction deprives the appellant's equal protection of the laws in violation again of the Fourteenth Amendment.

And lastly, as to the appellant Head, who is an individual, who claimed that it deprives her of her privileges and immunities as a citizen of the United States.

Briefly, the facts in the controversy of these, the appellant, Head, as I stated, is an individual doing business under the trade name of Lea County Publishing Company.

She resides in Hobbs, New Mexico and publishes there a newspaper called the Hobbs Flare.

This paper has circulation in New Mexico and Texas some 27 communities in the immediate trade area as well as some 13 other States and the District of Columbia.

The appellant, Permian Basin Radio Corporation is a New Mexico corporation which has been licensed as a radio broadcaster by the Federal Communications Commission.

Its facilities are located in Hobbs, New Mexico but its broadcast coverage covers both New Mexico and Texas.

I might mention here that Hobbs, New Mexico is in the southeastern part of New Mexico, five miles from the Texas border on the east and some 50 miles from the Texas border which runs south of it.

Now, the appellee, the Mexico Board of Examiners in Optometry is an official agency of the State of New Mexico, and it is here in its official capacity.

It is charged with the administration of the laws of New Mexico relating to the practice of optometry in New Mexico.

And the law which is under attack here is one of the laws that they were charged with the administration.

Now, conceiving its duty to include prohibiting advertising media such as the appellants from disseminating the advertising of the Texas optometrist, the appellee in September 1960 filed in the District Court for Lea County, New Mexico, a complaint against these appellants and also against a Texas optometrist named Roberts and against another radio station named KWEW, charging them with a violation of the Optometry Acts of New Mexico and seeking to enjoin them specifically from accepting in New Mexico and publishing and broadcasting in New Mexico certain advertising of this optometrist, Roberts.

Mr. Roberts is an optometrist who resides and practices optometry across the state line in Texas in Gaines County where there is a substantial business community.

He is not a party to this appeal.

In fact that no time did he ever appear before the New Mexico courts.

He apparently was served with process in Texas by someone in Texas.

And based on this, the New Mexico Court, some two weeks before this case, came on -- or hearing before the New Mexico Court, entered a decree against Roberts enjoining him from advertising in any way, in any media in New Mexico.

As I say, some two weeks later, there was a hearing in this case which the appellants appeared, having previously appeared by answer and having previously raised essentially the same constitutional questions which they have raised here.

At this hearing, which was on the appellee's motion for summary judgment, what few facts are in the record were elicited, and based on these, the district judge enjoin the appellants from disseminating -- accepting and disseminating in New Mexico certain advertising of Mr. Roberts.

Now, I might mention something about the evidence.

As Your Honors will see, the record is fairly thin in this case but I think the evidence does show quite clearly that the appellants are business people in New Mexico, that they had accepted advertising from an optometrist in Texas and that they are now restrained from doing so under the sanction of the New Mexico courts.

They now have the choice either of abiding by that and not disseminating the advertising or disseminating the advertising and facing contempt proceedings in the New Mexico courts.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carol J. Head: In part, it does Your Honor, and in part, it does not.

I will say as far as -- as far as the commerce question, I think it's essential that -- at least it's important to us that he does reside in Texas.

If he were a New Mexico optometrist, the only argument we could make is that we were entitled to disseminate this because we are in interstate commerce and that we broadcast into Texas and send papers into other States.

I think we will have difficulty with that but it isn't the case before the Court, so I would prefer not to -- not to take a definitive position.

We would have difficulty with it in view of this Court's prior decision I think in the Williamson case.

I might mention the Williamson case just because I do bring it up at this point.

It's a case that the appellee has made a great deal of and that the American Associate -- Optometric Association which has filed a brief as amicus curiae has also made a great deal of.

In fact, that case has no bearing at all on the issues involved in this case.

That was a case involving an Oklahoma statute which had a specific proviso excluding from its coverage any advertising media which might publish or disseminate advertising of persons such as optometrist or opticians or ophthalmologist who were covered by the Act.

Secondly, the parties to the action were opticians and ophthalmologists and no advertising media was in any way involved.

And in fact, all this Court held was that the Act is applied to these opticians and ophthalmologists did not violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

There was perhaps an interstate commerce question raised in that case which was the question I adverted to earlier.

The parties in the case tried to urge apparently that because they advertise their services endorsed papers in interstate commerce, they ought to be immune from this regulation because it burdened interstate commerce.

The Court did not deal with this question at all in its opinion nor did the lower court, the District Court in Oklahoma deal with this question.

So we submit that the Williamson case in no way controls this case.

The theory of the district judge in granting the injunction against these appellants was that they were engaged in the conspiracy to aid and abet Roberts, the Texas optometrist to violate the laws of the State of New Mexico.

And that even though Roberts was a nonresident and the Court had no jurisdiction over him, I might mention here that the District Court specifically said Roberts is a nonresident and we have no jurisdiction over him.

The Court thought that nevertheless because it conceived this to be a conspiracy, this appellant should be enjoined from disseminating this advertising, and accordingly on April 7, 1961, he entered such an injunction.

Now, thereafter, the appellants including the other radio station which is not a party to this appeal, appealed to the New Mexico Supreme Court.

They raised essentially the same issues raised here as well as some other issues which are not now raised.

New Mexico Supreme Court affirmed the District Court on April 11, 1962 and the appellants who were before this Court took an appeal on July 6.

This Court noted probable jurisdiction on November 13, 1962.

And at that time, while the issue had been raised in the body of the jurisdictional statement but had not been separately stated, the Court asked that the parties address themselves to the preemption problem, preemption by the Federal Communications Act and invited the Solicitor General to state the views of the FCC.

I think it's clear, if the Court please, that the purpose of the Commerce Clause was to avoid rivalries among the States, to avoid the raising of economic barriers and to avoid the imposition by one state of its standards on another state.

Justice John M. Harlan: Mr. Head, suppose (Inaudible) have gotten jurisdiction to someone over Mr. Roberts, to convey of this injunction against him, denying the right to advertise even though he's advertising his product (Inaudible)

Mr. Carol J. Head: I submit that they could not, Your Honor.

Justice John M. Harlan: No, I know.

Mr. Carol J. Head: I submit they could not.

Justice John M. Harlan: It takes how much ground is the preemption.

Mr. Carol J. Head: Well, I might say that on the preemption ground, this only applies to one of the two appellants because Mrs. Head the radio station have no relation to each other although this doesn't appear in the record.

I don't think there could be any dispute.

I would say on both grounds because while Roberts, I might mention was once licensed to practice optometry in New Mexico, the fact is and the record reflects it that he is now practicing and residing solely in Texas and nothing in any of the decisions or rulings of the New Mexico District Court or the New Mexico Supreme Court in anyway suggest that they were fitting this on the basis that he was once licensed in New Mexico because they're trying to get him because he's in effect advertising in New Mexico in a trade territory that comprises both New Mexico and Texas.

So I would say that both arguments would apply that even if they have beyond jurisdiction over him, in the sense of physically serving him that process in New Mexico.

I don't think the State of New Mexico validly could enjoin him either from disseminating, advertising in media like this in connection with his practice in Texas.

Justice John M. Harlan: Was there any fraudulent advertising?

Mr. Carol J. Head: There isn't any claim that that is the case --

Justice John M. Harlan: I know there isn't but I'm just testing out the scope of your interstate commerce.

You said that New Mexico would not have a right constitutionally to pass a statute saying that you cannot advertise fraudulently in New Mexico with respect to the merchandise that was going to be shown outside of the state.

Mr. Carol J. Head: I might have to concede, Your Honor that you could -- there are -- there would be some limits in the case of fraud and crime in this sort of thing.

However, here, the statute is not in any sense aimed that fraud.

Justice John M. Harlan: I appreciate it.

Mr. Carol J. Head: It's simply an economic statute that is aimed at price advertising and the stipulation in the record which is what the case was tried on is simply that these appellants accepted from this optometrist in Texas price advertising, they simply stated at what prices he would sell glasses and perform services.

So there isn't any suggestion of fraud.

I would agree to that where crimes of that nature committed, how that has to limit the scope of my argument.

But I submit that that isn't the case here.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carol J. Head: Sir?

Justice Arthur J. Goldberg: (Inaudible)

Justice Potter Stewart: Yes, the petition would be the same.

Is there any difference?

Mr. Carol J. Head: Well, I think there is, yes.

The -- insofar as the health argument is concerned, I think the State of New Mexico makes much -- too much out of it.

They have admitted it in their brief that citizens of New Mexico are free to travel because I think they would have to in view of Edwards versus California free to travel off from New Mexico to Texas for the purpose of obtaining services or materials for glasses from Roberts.

It also admitted that Roberts could advertise in media in Texas even though it might come in to New Mexico and be heard and read by the State of -- by people in New Mexico.

Now, I submit that the only thing left that they're simply trying to prevent people from learning that Roberts exists and I submit that the relation to the health of the citizens of New Mexico doesn't give them a sufficient time that they're justified in imposing on Roberts the standards that New Mexico conceives that optometrist thought to adhere to, the fact is that Texas does not have a statute similar to this of New Mexico.

It does not prohibit truthful price advertising.

New Mexico -- sir?

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carol J. Head: Yes sir.

I would say that if gambling is legal say in Texas or in Nevada, I take it, Mr. Justice Goldberg, that if it's legal in Nevada, I submit that residents in New Mexico cannot be foreclosed by the State of New Mexico from learning of this and if they desire, traveling to Nevada for that legitimate purpose, the purpose which would be legitimate in Nevada.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carol J. Head: I would say yes sir, because I think in fact this is -- this is what the Commerce Clause boils down to.

Otherwise, we have a state like in Mexico imposing on other States its own standards.

Now, let me emphasize --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carol J. Head: Yes.

There have been --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carol J. Head: I don't think any of the exceptions are applicable to this type of situation and I would like to amplify how far States go in making a health argument.

Because I think the same thing is applicable here.

This sort of price statute prohibiting price advertising has been attempted with respect to barbers, it has been attempted with respect to embalmers, it has been attempted with respect to other advertising gasoline.

In the case of Meyer versus Nebraska and which this Court held the State could not prohibit the teaching in public school or in private schools either of foreign languages.

The argument was even made as a suggestion currently because it's noted in the Court's opinion specifically that the prohibition was aimed at protecting the health of the children by limiting their mental activities.

So you see this -- I submit that the State's given leeway to announce that anything is done in the interest of the health of their citizens.

No known limits.

And I submit that they should have limits when it comes to imposing their standards on other States.

Does that answer your question, sir?

Now, we submit that there are no cases completely similar to this case that has been decided by this Court.

Perhaps the most analogous case is that of Baldwin versus Seelig in which New York attempted to prohibit in New York the sale of milk purchased in Vermont unless that milk had been purchased in Vermont from farmers at a minimum price equal or greater than the price paid farmers for milk in New York.

Based with that situation, this Court held that this violated the Commerce Clause that this was an undue burden on interstate commerce because it was an imposition by New York of its economic standards on Vermont.

And there again, the State of New York made the argument that this was done in the interest of sanity and health, sanitary conditions and health that imposing higher economic standards would make farmers have cleaner milk and more sanitary milk and this would benefit the health of the citizens of New York.

This Court rejected that argument and said that the economic standards for Vermont would have been set by Vermont if there is a problem.

We submit that here, this is analogous because in effect, the State of New Mexico is attempting to establish in Texas as to a Texas optometrist, the standards that it conceives ought to be adhered to by optometrist in New Mexico.

We submit that these appellants are victims of that imposition of the standard and that this burdens commerce.

Now, I will agree that this case in and of itself involving the advertising of eyeglasses with appellants such as these who frankly are not large businesses, they seem somewhat insignificant but I submit that this case has a more far reaching consequence if the decision should be in favor of the appellee.

There are many such border communities.

There are many such areas in the country where towns are situated side by side, for instance New York City and New Jersey or Covington, Kentucky and Cincinnati and Ohio.

And all over the country, you can find situations where people in effect have intercommunication economically and where it would create chaos I think for one state to be able to impose its standards on another where in fact the purpose or at least the effect would be to prevent people from one city from going to the other -- to the economic betterment of the people for whom they might trade with or whom they might trade in their own city.

I think in fact, that is what this statute as applied to these appellants really has aimed that.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carol J. Head: I don't know of any state that tolerates the advertising by lawyers, Mr. Justice Goldberg, but if a state did, I would say that certainly if it's -- if a lawyer from say New Mexico or say Texas which authorized advertising by Texas lawyers, tried to advertise in New Mexico that he would perform legal services for people in New Mexico.

Let's say a period in the Court or something like that, I submit that that would be a different case than saying that he is a lawyer in Texas.

His services are available.

If they want to come there and use them, they may do so.

I submit that that advertising should be permissible if Texas conceives that its interests are such that advertising by lawyers is permitted.

Now, aside from the Baldwin case, there have been a number of state cases in which the problem of prohibiting advertising media such as newspapers have arisen.

The first one I might mention, I try to think is most pertinent is State versus Salt Lake Tribune Co. which we've cited in our initial brief at page 14.

There, Utah Court reversed the conviction of a Utah paper which circulated in Utah and also in interstate commerce for publishing in Utah the advertising of cigarettes.

It was lawful to sell cigarettes in Utah at the time.

It was not lawful to advertise them.

The Court said that this was an undue burden on interstate commerce.

It didn't decide on any other ground that this was an undue burden on interstate commerce.

On the other hand, in -- a post Printing and Publishing Company case which I also cite at the same place, United States District Court in Kansas had converse of the situation we have here.

They have the question of a Kansas newspaper published in Missouri, circulated in Kansas and carrying advertising of cigarettes, the advertising of cigarettes being lawful in Missouri but not being lawful in Kansas.

From there again, the District Court in that case said that this was an undue burden on interstate commerce.

And so our third case, Little versus Smith which is a Kansas case on facts similar to the Salt Lake Tribune case, Court held that prohibiting a newspaper published in Kansas from carrying this advertising of cigarettes by a firm outside of Kansas, denied the newspaper equal protection of the laws and due process and its privileges and immunities as a citizen of the United States.

It didn't reach the question of whether this was a burden on interstate commerce but I think the case is relevant.

Now, the only cases is in fact in this area that are contrary to the position taken by these appellants are cases involving the prohibition of the advertising of liquor, intoxicating liquor.

And it was on this line of cases that the New Mexico Supreme Court relied in deciding this case.

They stated that they were in agreement with the reasoning of the Court in J.P. Bass Publishing Company which we also cite in our initial brief at length.

In that case, the Supreme Court of the State of Maine upheld the conviction of a publisher in Maine for publishing in Maine, a newspaper carrying advertising of liquor for sale in Massachusetts, liquor being legally for sale in Massachusetts but not legally for sale in Maine.

The Court was presented with the argument that this burdened interstate commerce and it said no.

How the reliance of the Court in that case was on this Court's case in Delamater versus South Dakota which I think makes very clear that liquor is a special commodity.

This Court has said in Delamater and in other cases that Congress by the Wilson Act and other Acts has removed from the protection of the Commerce Clause such things as liquor and this was the sole basis of the Delamater case.

The Court said that if something other than liquor were involved there would have a different question.

So it didn't decide the case on any other basis.

I might mention that the Delamater case did not involve newspapers or other communications media, it involved a salesman who had come in to South Dakota and then sold or solicited orders for liquor without a license as required by South Dakota law.

Now, the evil as we conceive it of New Mexico's prohibition against these appellants disseminating the advertising of Roberts is not only that it prohibits New Mexico residents from learning that Roberts is there, it also prohibits those persons in Texas who might use these communications media for their information from knowing that Roberts exist also.

This is particularly so in the case of the radio broadcast station who in broadcast coverage in terms of geographic area is in fact larger in Texas by virtue of the geographic location of Hobbs than in New Mexico.

Now, how many people are in Texas and New Mexico in the comparative areas, the record doesn't show.

We submit that the fact that Texas residents are also foreclosed by this injunction from learning that Roberts exist and will perform services or sell commodities at a certain price, emphasizes the burden that this injunction has on interstate commerce.

Now, when you multiply this by other newspapers of more significant circulation than that of Mrs. Head or other broadcast stations having wider broadcast coverage than that of the appellant here, I think the case is a more significant -- presents a more significant problem than it would appear.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carol J. Head: Yes, sir.

That was the same -- the same wattage of the other station which was involved too.

Justice Potter Stewart: Are there any -- just from my curiosity, are there any radio stations or newspapers over in this adjacent county in Texas?

Mr. Carol J. Head: Well, the record doesn't show that there are, having grown up out there I can say that there are.

There is a station some 25 miles away in Seminole, Texas.

I think there is a small paper in Seminole, Texas and there are in the other areas, other communities in both Texas and New Mexico.

There are other papers --

Justice Byron R. White: Mr. Roberts, (Inaudible)

Mr. Carol J. Head: Yes, he did.

I wouldn't say the outskirts of Hobbs.

Hobbs is about five miles from the border, Mr. Justice White.

It's a community of some 25,000 and between the end of Hobbs and the state line, there is perhaps three miles of -- or two miles of --

Justice Byron R. White: Of whatever there is there.

Mr. Carol J. Head: Of whatever there is there.

Justice Byron R. White: (Inaudible)

Mr. Carol J. Head: Well, there is -- I might say that the record doesn't reflect the facts on this so whatever I state, I want it to be understood that this is -- this is just based on my knowledge of the area.

There is a community out there.

There are businesses out there.

It's not a substantial community but there are a number of businesses out there.

There are a number of gasoline stations for instance which were, I believe, specifically are -- which I think did specifically grow up because --

Justice Byron R. White: How far is that (Inaudible)

Mr. Carol J. Head: Let's say it starts right across the border and extends perhaps for a mile, starting along the highway.

It's a border --

Justice Byron R. White: (Voice Overlap) explanation for why there is a community there at all, other than the fact that --

Mr. Carol J. Head: Other than the fact that there are differences in the state laws.

Justice Byron R. White: And prices.

Mr. Carol J. Head: And prices.

I would say this is so.

And I --

Justice William J. Brennan: Is that to say that Hobbs is in the normal trading area for Roberts' store?

Mr. Carol J. Head: Oh yes, very definitely.

Justice William J. Brennan: He'd expect, in other words, the biggest part of his fate or a substantial -- any event from --

Mr. Carol J. Head: I'm sure -- I'm sure he would expect.

I wouldn't say the biggest part, I'm sure to expect some.

Now, the record again doesn't reflect this because Roberts had no time appeared before the New Mexico courts.

So we don't know really where all he got his people from.

Justice William J. Brennan: But did you suggest that but for the New Mexico law he'd probably located his business in Hobbs?

Mr. Carol J. Head: I didn't mean to suggest that if I did, Mr. Justice Brennan.

I -- at one time, he was located in Hobbs.

Now, why he moved out, I don't know.

Justice Byron R. White: He was located in Hobbs.

Mr. Carol J. Head: There -- I think he was at one time.

At least he was licensed now.

Whether he was I don't really know.

The record doesn't reflect it.

Perhaps these gentlemen on their argument could tell you because they live in the community now.

I have been there for number of years so I don't really know whether he once lived in Hobbs or not.

He was once licensed by the State of New Mexico whether he ever practiced being in the State of New Mexico, the record doesn't show and I don't know.

I'd like to take just one example of another statute of the State of New Mexico regulating advertising by business persons.

I don't know whether they would conceive that this has any relation to the health of the people or not but at least it's a restriction on advertising.

Section 47-11-14 of the New Mexico statutes which provide that owners of stallions that are not purebred was not for any advertising calling attention to the stallion as a breed unless -- as a breed -- unless the advertising has the word scrub or grade in one inch letters in front of the word stallion.

I take this situation, suppose the appellant Head, got an advertisement from a man in Oklahoma and he said he was going to have a stallion auction.

She would be faced with the problem of asking him first, “Are these purebred?”

First, you would be faced with the problem of learning that the specific restriction exists then she would be asked faced with the problem of asking the man, are these purebred stallions?

If so, you must put this before it.

In fact, she would have to administer the statute instead of relying on the state to go after the man in Oklahoma.

Now, even if he told her that they were purebreds, if they turned out not to be purebreds, she would be faced with the problem that she has nevertheless disseminated advertising in New Mexico or to Oklahoma who has advertised stallions that were not purebred in violation of this law.

Now, this law doesn't say any person who advertises it.

It says the owner of the stallion but the reasoning of the District Court in enjoining these appellants and I think the reasoning of the New Mexico Supreme Court was that they were engaged in a conspiracy to aid and abet Roberts.

You could apply the same situation with respect to stallions.

You could argue under any states, general conspiracy laws that anyone promulgating or disseminating any advertising for the advertiser is in effect aiding and abetting the violation of the law and is in a conspiracy.

So even though the specific statute might not refer to any person, I think the danger is there that the State could apply it particularly if what New Mexico attempts here is upheld.

On the preemption problem to which this Court specifically asked the parties to address themselves and invited the Solicitor General to state the views of the Federal Communications Commission, I would like to limit my argument somewhat in that.

I've dealt with it at length in my initial brief and in my reply brief.

Because of the time, I would like to defer some of that and leave it to the Solicitor General who I know is going to cover the field.

Essentially, we are in agreement with the position of the Solicitor General insofar as it applies to this particular advertising.

I think beyond that, there are some suggestions made which we -- as we point out in our reply brief that we do not subscribe to but I think so far as this case is concerned, those are unimportant.

We believe that the Federal Communications Act does preempt what New Mexico has attempted to do in this case.

We submit that this Court's prior decisions in such cases as the National Broadcasting Company case and the Sanders Brothers case leave no doubt that Congress as its intent has been construed by this Court, intended a pervasive scheme of regulation with respect to radio broadcasting.

I would like to mention just one case which we believe is quite similar and this is a case from the Court of Appeals for the Third Circuit.

It's a case of Dumont Laboratories versus Carroll which we've dealt with at length in our briefs.

There, the State of Pennsylvania tried to apply its censorship statutes so as to prohibit the carrying on television of films, movie films, until they have been censored or checked for censorship by the Pennsylvania Censorship Commission.

The Court of Appeals for the Third Circuit as had the lower court, considered that that was an intrusion by Pennsylvania into an area that had been preempted from state regulation by the Communications Act.

Justice John M. Harlan: A specific provision of the statute.

Mr. Carol J. Head: Well, this -- it's true that that -- the Pennsylvania statute was key to obscenity but it all -- I think it was a little broader, Mr. Justice Harlan.

It also had the term sacrilegious which is the term that this Court had trouble with in the Bernstein case.

And I submit that interpretations of the various words in the Pennsylvania statute could be much broader than for instance affecting -- adversely affecting public moral that sort of thing, this lead to broad interpretations.

So I think the case is analogous and that the preemption wasn't solely because the Federal Communications Act has some specific language with respect to obscenity.

Now, the third -- our third argument is one on due process.

As I mentioned earlier, the appellee has questioned the right of the appellants to raise this issue insofar as it relates to free speech.

Now, the case when it was before the District Court of New Mexico and when it was before the Supreme Court of New Mexico did not specifically mentioned freedom of the press.

The issue was raised solely in terms of deprivation of property in violation of the Fourteenth Amendment.

Now, we face -- we're on the two problems.

One is that the argument was simply that this was a deprivation of property whereas this Court has talked in terms of deprivation of liberty of the press.

I dealt with this in my initial brief and I submit that there at least is some substance to our appeal.

Beyond that, I submit that the other problem is that this is commercial advertising.

But in no case of this Court, has the Court ever said that advertising under these circumstances is not entitled to the constitutional protections afforded other information that might be disseminated.

There are cases such as Valentine versus Chrestensen in which this Court held that you could not distribute under the protection of freedom of the press or freedom of speech handles in New York City.

I think that's a much different case than saying to a radio broadcast station or a newspaper which are engaged in the business of disseminated -- disseminating not only commercial advertising but other information as well and for whose livelihood advertising is essential.

I submit that this is a totally different case that was involved in Valentine.

The same is true of Cusack versus the City of Chicago in which this Court held that billboards carrying advertising could be prohibited.

I think this is again is a much different case and I think the rationale of the Court's decision in Cusack case would show that.

And I think the same is true of the Railway Express case which is relied on I think by the appellee.

There, Railway Express which operates trucks with advertising on the sides was prohibited from operating its trucks in New York City streets with the advertising even though some of these trucks move in both New York and New Jersey.

Now, we submit that the rationale of the Court's decision was one based on regulation of local traffic.

And we think that it was limited to that specific type of situation that it shouldn't be applied to this one.

The last due process point is simply that the regulation here attempted doesn't bear that real and substantial relation to the object of the legislation the due process requires.

The State has admitted that these people can travel to Texas, that advertising from other media can come in to New Mexico even though this means that these residents of New Mexico will hear or might hear and read this same type of advertising.

So this leaves the sole effect as to prevent people from learning from these appellants that Roberts is in Texas performing these services.

We submit that this runs to follow this Court's prior decisions as to what is compatible with due process under similar circumstances.

Now, the State Supreme Court, I think in relying on the J.P. Bass Publishing Company case in effect admitted that it would view differently out of state newspapers coming in to the State of New Mexico in carrying the same advertising.

And I think this is the position of the appellee that this would not be prohibited by the State of New Mexico.

If this is so, then we submit that this is a denial to these appellants of equal protection because here are the people in the same area trying to carry the same advertising, two of whom because they are located in New Mexico are restrained from doing so but others of whom because they are outside the State might be allowed by the State to carry the same information.

We submit that this is as to them a denial of equal protection.

I like, if I might, to cut my argument short and reserve the last few minutes please.

Chief Justice Earl Warren: You may, Mr. Head.

Mr. Solicitor General.

Argument of Cox

Mr. Cox: Mr. Chief Justice, may it please the Court.

The order granting certiorari in this case divided the views of the Federal Government upon whether the state statute as applied by the courts below, unconstitutionally invaded an area preempted by the Federal Communications Act.

The facts pertinent to that question are very simple indeed.

An optometrist in Texas sought to send materials and send it by telephone, I believe, to a radio station whose transmitter was in New Mexico to be broadcast over an area which included residents of both states, slightly more of the area being in Texas apparently than in New Mexico where the transmitter was located.

The material in turn invited sales not in New Mexico but in Texas where the optometrist was located.

And from the standpoint of preemption, I think, it makes no difference whatever of why the optometrist located where he did; the fact is that he was in Texas.

And I don't believe the question of preemption as affected by his state of mind or that would be a different rule according to why a person was in the other state.

Justice Byron R. White: (Inaudible)

Mr. Cox: No, no.

It's simply -- I think it makes no difference why he is in Texas.

Justice Byron R. White: I suppose you will -- by the time that you will know why the rule wouldn't be the same if he was in New Mexico.

Mr. Cox: I think -- well, I would develop it and say it more later but very briefly Justice White, I think that is simply one of the aspects which may be relevant in the overall judgment.

I suspect we would come out the same way but I would have to admit that I put some reliance on that and that a distinction is impossible.

The rest of my argument would be very much the same which you'll see.

We conclude as I intimated my previous sentence that the field has been preempted that the state law as applied to the radio station here is invalid.

I expect to divide my argument into three parts.

First, we show that the Federal Communications Commission is given wide power over all aspects of radio and of course television programming including advertising in the course of granting, renewing, and revoking licenses.

Second, we submit that when Congress set up a regulatory commission with authority to take programming and advertising into account in administering this comprehensive system of licensing, then it barred the States from direct and substantial regulation of the content of interstate broadcast.

And then I come to the third and essential point which is that in our judgment the New Mexico statute in this case prohibiting advertising in the price of eyeglasses is what I call a direct and substantial regulation of the content of radio programs.

My first point really requires almost no argument.

The broad scope of the Federal Communications Act as indicated by the declaration of policy processes the special provisions relating to radio.

The purpose of that chapter, as declared to be, to maintain the control of the United States over all the channels of interstate and foreign radio transmission and to provide for the use of such channels under licenses granted by federal authority.

The regulatory authority of course is vested in the Communications Commission.

That Commission is set up by -- it's first setup by Section 1 of the entire Act.

And there, the purpose according to that Section was to the purpose of creating the Commission, was for the purpose of regulating interstate and foreign commerce from communication by wire and radio so far as to make them available so far as possible to all the people of the United States, and for the purpose of securing a more effective execution of this policy that is making them available to all the people of the United States by centralizing authority heretofore granted by law to several agencies.

Now, I think the several agencies that it refers to were all federal agencies.

I don't want to overstate the point.

But the use of the words by centralizing authority, I do think indicates a disposition to have all the control of the radio stations in one place.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Cox: The Federal Trade Commission would have the same authority over this false advertising as over any other false advertising.

And indeed, I shall show later when I come to the critical words directly substantial that I'm not suggesting that no state law of any character can ever be applied to a radio station.

Really, you see that would come on the third part of my argument.

I want first to show that some state laws are excluded.

But I call those having direct and substantial impact.

Justice William J. Brennan: Well, Mr. Solicitor General, I gather there is federal regulation.

Is it Federal Trade Commission of false advertising?

Mr. Cox: False advertising would be scrutinized by federal agencies in two ways.

First, the Federal Communications Commission would take this into his account.

Justice William J. Brennan: Was sit in fact?

Mr. Cox: It takes it into account in fact to this extent.

Let me -- let me develop just one or two points and I think the answer will become --

Justice William J. Brennan: Well, before you answer, may I just ask this question.

But for the fact that there is some federal regulation of false advertising, would you be making the preemption argument?

Mr. Cox: I think we must misunderstand each other.

What there is, is the Federal Communications Commission in the licensing process as I was about to say, has authority indeed must take into account content programs.

There is no explicit prohibition so far as I can now recall in the Communications Act of false advertising.

I would base on the licensing authority and its actual exercise to scrutinize the character of advertisements that stations broadcast when it comes to renewing their license or possibly revoking them.

On that basis, I would argue preemption, yes.

And the fact that the Federal Trade Commission has some -- before of some authority over false advertising, forms no part of my argument.

Justice William J. Brennan: Forms not at all.

Mr. Cox: Forms no part of it at all.

Justice William J. Brennan: So that -- then the federal regulation limited to the FCC is only a function of its licensing.

Mr. Cox: It's a function of its licensing.

It's comprehended within its licensing.

Justice Byron R. White: Which includes revocation and renewal.

Mr. Cox: Which includes revocation and renewal and of course --

Justice William J. Brennan: But it has no power then, if I may suggest, in a way of a cease and desist order dealing with a specific violation of advertising.

Mr. Cox: I believe not.

You see, Section 326 of the Federal Communications Act which must be taken in conjunction with the affirmative licensing provision that provides that nothing in the Act shall be understood or construed to give the Commission the power of censorship over radio communication and then goes on and says, the Commission shan't anyway interfere with the right of freedom of commu -- mass communication.

So if the Commission's authority is between the two, you can find it in the licensing provision but as limited by this explicit substantive provision.

Within that limit, the Commission and as part of its licensing function must scrutinize the content of programs and advertising companies because there are more applicants and potential applicants for frequencies of the television channels that are available.

Justice William J. Brennan: But I have to make it a single misstep.

Mr. Cox: A single misstep --

Justice William J. Brennan: -- would force the license or renewal necessarily with it.

Mr. Cox: Not necessarily.

No.

No.

There's nothing -- there's never been anything comparable to cease and desist orders and I'm not aware of anything that would enable you to issue.

Justice Byron R. White: But to the extent that there is some question about the authority of the Commission to supervise or to oversee the content of program to that extent does your preempts and argument become --

Mr. Cox: To that extent, yes.

As to the power (Voice Overlap)

Justice Byron R. White: You understand that it is under some litigation in the courts, isn't it?

Mr. Cox: I didn't think that what anything that I have said is in any way challenged in litigation.

I'm going to check it overnight but I'm not aware of it.

Chief Justice Earl Warren: We'll recess now before you get to your new point now --

Print this transcript Transcript: 

Argument of Cox

Chief Justice Earl Warren: 392, Agnes K. Head and Lea County Publishing Company et al., Appellants, versus New Mexico Board of Examiners in Optometry.

Mr. Solicitor General.

Mr. Cox: Mr. Chief Justice, may it please the Court.

During the opening of my argument yesterday, I was showing that the Federal Communications Commission has a comprehensive jurisdiction over radio broadcast and particularly over the programs and programming.

The view of the Commission with respect to its powers which come under the licensing authority as I was seeking to develop is perhaps best set forth in a passage quoted from one of its statements of policy beginning at the bottom of page 19 of our brief.

Broadcasting licensee as the Commission said, must assume responsibility for all material which is broadcast through their facility.

This includes all programs and advertising material which they present to the public.

With respect to advertising the material, the licensee has the additional responsibility to take all reasonable measures to avoid any false, misleading or deceptive matter, and to avoid abuses with respect to the total amount of time devoted to advertising continuity as well as the frequency with which regular programs are interrupted for advertising message.

Now, that is not simply and idle declaration.

The Commission has consistently in determining whether to renew a license or to revoke a license taken into account the character of the programs and particularly the character of the advertising by a station.

For example in one case, the Commission sustained in the examiner's finding that a radio station had been guilty of a breach of its duty as a licensee because it engaged in what was known as bait and switch advertising.

And in another case, one of the grounds for failing to renew a license was that the radio station had run a so-called “Medical Question Box”, answering questions about health and then advertising or offering prescriptions from the sale of which it received commission the same way the Commission has on a number of occasions expressed its concern about advertising of beer and other malt beverages in states where their sale was prohibited.

And only recently the Commission scheduled a proceeding to determine whether it should promulgate some kind of a rule or standard on the amounts of time of which may be developed to -- may be devoted to advertising.

Justice William O. Douglas: It does consider the -- whether or not the advertising, conforms to the state law?

Mr. Cox: It would take that into -- it would take that into account.

I do not mean to suggest the state law would be determined.

This is something it would take into account very clearly.

Justice Arthur J. Goldberg: General, the position you actively (Inaudible)

Mr. Cox: The closest -- the closest illustration that comes to my mind is the “Medical Question Box” illustration, in which I'm not able to say it was the only ground because I don't remember but at least one of the grounds on which a license was not renewed was that the station had engaged in this practice.

Now, the case that is close to it and which I think is the case that Justice White must have referred to yesterday when he said, “this power was challenged”, involves a little different question but I think it does -- it is certainly close to the point.

There is a station, I believe, the Palmetto Broadcasting Company or something like that in South Carolina, whose license was not renewed for two reasons: that they were allegedly false representations made to the Commission; and second because a good part of the commentary by one of its disc jockeys was believed by the Commission to be in very bad taste if not obscene.

As I am informed, Justice White, there is no challenge to the power of the Commission to take these things into account.

There is in that case, a challenge that centering -- that taking it into account as bad taste because it's arguably obscene of passes over the line in the censorship and I would have to acknowledge here, do acknowledge, that the Commission's power to deal with this subject matter is of course limited by the provision in the statute that I mentioned yesterday that says, it should not engage in censorship.

But within the two banks of that canal, it has unquestionably exercised its powers.

Now, I should --

Justice Arthur J. Goldberg: (Inaudible) in placing this man where there are specific jurisdiction dealing with advertising?

Mr. Cox: I think it is never -- of course, the Government in order to deal with this problem, would rely on the Federal Trade Commission as another weapon if it was false advertising.

This case, I submit, is not false advertising.

Justice William J. Brennan: But Mr. Solicitor General, how -- Section 54 (b) at Title 15 says, “that no radio-broadcast licensee,” this is as to the Federal Trade Commission, “shall be liable under this Section by reason of the dissemination by him of any false advertisement, unless he has refused, on the request of the Commission, to furnish the Commission the name and post-office address of the manufacturer,” and so forth.

How -- does Federal Trade Commission have any jurisdiction?

Mr. Cox: I spoke too -- I spoke too broadly.

I was thinking of the advertising company or the sponsor of the program when I -- when I answered Justice Goldberg.

Of course, the Section you call attention to required qualification of what I said.

There is one other point about --

Justice William J. Brennan: Well, what I -- what I -- what I was interested yesterday when I asked you, your preemption argument then doesn't rest at all upon any supposed authority in the Federal Trade Commission.

Mr. Cox: No.

Justice William J. Brennan: To deal with deceptive advertising.

Mr. Cox: No.

No.

Justice William J. Brennan: It rests exclusively on the regulatory authority that you've been discussing of the Federal Communications --

Mr. Cox: Communications Commission -- and indeed, one might -- one might draw an inference from the Section you mentioned, also, I confess I haven't really thought it through that the just as the Federal Trade Commission was excluded in a sense for dealing with licensee, so there is all the more reason to think that the states would be excluded from doing the same thing.

Justice William J. Brennan: Well, I'm not sure that that follows but --

Mr. Cox: Not necessarily.

Not necessarily, but I think it may point in that direction.

There's one other point to avoid misconstruction that I should mention.

We do stand on the licensing power here.

Yesterday, I was asked, I think it was Justice Brennan, “was there any power to issue a cease-and-desist order and I answered we didn't rely on that or no.

My answer was, again, perhaps a little too broad.

The Federal Communications Commission does have a broad rulemaking authority for the purposes of carrying out provisions of the Act.

If the Commission issued a rule dealing with the character of advertising or the amount of time given to advertising, then it could issue cease-and-desist orders directed against the violation of that Rule.

And then, the cease-and-desist orders that can be enforced in Court.

Justice Byron R. White: There's no --

Mr. Cox: But though, I'm not -- I'm not -- I say this simply to avoid any misunderstanding about the scope of the Commission's power.

I'm not relying on this argument here because the Commission has not made any such regulation or there may be questions about how broad the power is.

I was just afraid I might have conceded so –-

Justice William J. Brennan: Well, the thing that --

Mr. Cox: -- I did not mean to concede.

Justice William J. Brennan: Well, what I had in mind Mr. Solicitor General was this.

Apparently what we have here, at least as applied as I understand it, is a state regulation directed only at price advertising.

Mr. Cox: Yes.

Justice William J. Brennan: It's all this is.

Mr. Cox: Yes.

Justice William J. Brennan: And this might be merely an insolated instance so far as this record is concerned, an isolated instance.

And I'm just wondering whether the Commission on the basis of an isolated instance under its present rules and regulations would take this into account at all either on a renewal application for example.

Mr. Cox: I assume that it would be relevant.

But in --

Justice William J. Brennan: But if these were the only violations that were involved under -- brought to the Commission's attention on a renewal application, would it be a sufficient importance that the Commission might deny renewal?

Mr. Cox: I would assume without having any knowledge.

I would assume now that this would not be a reason to deny a renewal --

Justice William J. Brennan: Well, then whatever might be illegal consequences, if that were true, it would be a violation of New Mexico law that if you're correct about preemption, it would not -- it would go on redressed because the state would have no power to do anything about it and the federal authority would do nothing about it.

Mr. Cox: Quite true but frequently preemption results to a violation of what would be the state law if the state law were valid.

Now one of the reasons that I say, I think the Commission would not regard to this was a reason for denying renewal of a license, although, I'm just guessing is this, New Mexico -- Texas has a quite different view as to where the propriety of this advertising.

Justice Byron R. White: Then the Commission might.

Mr. Cox: And the Commission might.

The Commission -- and I think the Commission must take into account after all in terms of where the optometrist was located or optician in terms of where the sales took place, this was all entirely lawful and about 40% of the States do not in any sense forbids this kind of advertising.

So that the -- here the Commission might well come down the other way.

Now, this was conduct that violated the laws of every state and therefore was more serious.

I can think that even though it is a few instances unless there were assurances that they would be stopped, that the Commission might well reach a different result.

Justice William J. Brennan: Not yet ordinarily, I take it, that New Mexico might, as a health measure, think that price advertising might induce people to buy eyeglasses which in fact would do no good for them.

Mr. Cox: Well, the Court -- the Court --

Justice William J. Brennan: Well, the (Voice Overlap) --

Mr. Cox: The Court has held -- the Court has held that New Mexico has the power to make that finding in the Williamson case.

And I would point out here though that so far as New Mexico's power to deal with New Mexican optometrists and opticians, there is no question about its power to deal with them.

Furthermore, I would think that as I suggested yesterday that a distinction at least might be drawn depending on whether this was a New Mexican optician or optometrist.

Certainly, he could be dealt with.

Alright now, there may well be a difference, I don't think it's the whole argument because the arguments that I hope that time to make that would bear on both cases.

But I think there may well be a difference between the case where New Mexico prosecutes the radio station as in aider or abettor in what is clearly in offense within New Mexico's jurisdiction, and the case where what New Mexico is seeking to do is to take hold of this transmitter which happens to be located within its border.

As a way of cutting off a transaction coming in from Texas, cutting off radio broadcast going to both territories, going back to Texas in part, and bearing upon sales that are going to take in place in Texas.

There it is, if I might just finish the thought, there I think it is true to say that New Mexico is in the sense singling out the transmitter and trying to use it as a way of accomplishing something it couldn't otherwise come to.

And that seems to me to be focused upon a licensee under the Communications Act, in a way that makes this not quite, but something of a direct effort to regulate interstate broadcasting as such almost.

I do have to add the “almost” but it is very much so to my way of thinking.

Justice Arthur J. Goldberg: General, (Inaudible)

Mr. Cox: I think in our – we have briefed only the preemption part.

I think to answer you, I really have to express a little bit review on the other.

I find this an exceedingly close case on the commerce part.

I think it might well be held that on commerce grounds, this was unlawful.

But it seems to me that in determining whether there is preemption, it is quite proper to take into account the considerations that are also relevant on the commerce part.

And after all, what we're trying to do here in determining whether there is preemption is, I take it, to determine the intent of Congress.

If Congress -- the appellees in amicus argue, that the question is whether there is a squared conflict.

That is not the test as this Court has laid it down.

There are many cases where the Court has said that supplementary legislation by a state is improper, that legislation in an area that Congress intended to be free as improper, the duplicate legislation is improper.

The question is, did Congress when it passed this statute intend the whole area to be subjected to the exclusive jurisdiction to Communications Commission or did it intend to leave the way open for each of 50 states to pass such additional laws in the area as each or all of the 50 might see fit.

Now on the question intent, Justice Goldberg, I think that these considerations that I have mentioned -- been mentioning some of them, are highly important.

For example, it seems to me that it is of the utmost importance, that this is a subject in which the dominant interest are multistate because it is the more likely that Congress would not choose to delegate them to individual state.

Again, it seems to me, it's of the utmost importance that this is something that so far as Congress limited the powers of the Commission, it did so I submit, not out of the desire to leave this to local control, but out of a recognition that we were in the area or close to the area of freedom of speech.

And I think the limit on the Commission's power, the fact that it should not get into censorship reflects as substantive policy that when one to expect to be just as applicable to the state, as to the Commission itself.

So that here, the failure to regulate programming more is to be explained not by leaving something for state law to operate in, but as an adoption of a substantive policy of not allowing any regulation in that area, and therefore as an indication of the desire to exclude this day.

Again, I think it is relevant in determining preemptions whether this is a subject in which the State really has any vital interest or can really do very much about it.

I pointed out here that there is a way for the state to deal with its vital interest so far the optometrists or opticians are concerned, it's also true of course that it can't deal very much about this.

And whenever it does try to do anything about it, it affects the people of other States.

New Mexico can't control the broadcasting from the station in Seminole or around the Texas side of the line.

It can't keep the airwaves from reaching its citizens.

All it can do is put this station, adding on together the capriciously disadvantaged.

Again, if New York attempts to deal -- attempts to control of what is broadcast from a radio station in New York, it is attempting to regulate not only from what the people of Connecticut can hear, what people of New Jersey can hear, and of course, as applied to something like chain broadcasting of regulation from the different state, would create an altogether impossible situation.

Justice Arthur J. Goldberg: But General, aren't you (Inaudible) New Mexico interest?

After all, New Mexico is certainly one of the states that follow a strict type of advertising (Inaudible)

Mr. Cox: Well, first, I would say that although 31 have, it's equally true that -- I have not -- equally, I would distinguish, Justice Goldberg, it very sharply between the problem of fraud as the problem of the advertising on price, and this brings me to a question which is very important here and I would hope I might take an extra minute Mr. Chief Justice to discuss it.

Now, clearly this is a matter of drawing a line.

It's quite plain that a state may apply some state laws, not only to broadcasting stations, which is obvious, but to broadcast.

For example, we would fully agree that New Mexico or any other state may apply its laws of defamation to a radio station.

That if a radio station knowingly permits its facilities be used to broadcast the signals to a gang of professional thieves or gamblers in some way, that the ordinary criminal law may be applied to the broadcast.

On the other hand, it seems to us entirely clear that an intolerable situation would be created if each of the 50 states could regulate the content of advertising, the time that the station might give to advertising, the amount of it which might be -- have to be in local origin as applied to national origin, where is the line to be drawn in between?

I would say there were four standards, four criteria that are applicable.

The first would seem to me is this a state law which singles out radio broadcasting in some way or is it in part of the massive general laws applicable to everybody and the fact that it is done over the radio makes no difference in a case of defamation if it's done in conversation that's defamatory.

Selling -- obtaining property under false pretense.

It doesn't matter whether you do it on the radio or otherwise.

This case, it seems to us to come according to these criteria, pretty far into the area of regulating radio broadcast as such.

First, it deals only with mass communications which does not exclude the newspapers or billboards, but nevertheless, narrows the area, to an area close bound radio broadcast.

And in second place, I suggested a moment ago, this is an effort to use the physical location of the transmitter, the broadcast as a handle for doing something that New Mexico couldn't otherwise do.

The second line of inquiry that we think is relevant is whether the state law falls in the area of general common law torts or crimes whether they've been incorporated in statute or into the more modern type of social and economic legislation.

I think there are two reasons why this is a material inquiry.

The first is that of course, any statute in Anglo-American law is put down into an existing body of law and it takes a very strong showing to demonstrate the point that Congress intended to oust.

But the second reason is that whether you're dealing with crimes that are malum in se as distinguished from malum prohibitum to suggest, rather to draw a sharp distinction, or where you're dealing with the common law torts, you're dealing with an area in which there are divergences.

But on the whole, the law of the 50 states is the same.

On the other hand, when you get into the more modern type of social and economic written legislation, the opportunities for divergence are a great deal (Inaudible) and more conflicts in uniformity, and more conflicts in diversity are about to grow out.

Third, we think it's important whether the measure is a prior restraint or attempts to deal with the matter after the event.

But here, quite clearly, we're dealing with an adjunction in the area of prior restraint.

And fourth, Mr. Justice Black and Mr. Justice Goldberg, it does seem to me that the degree of the State's interest is a material factor in determining whether you have preemption because you have to consider how much the State is being hurt.

And I would with reference to that point simply refer back to what I said before without denying that New Mexico has interest.

It is an interest where the nature of the technical problems limits what it could do and where it can deal with the problem so far as truly domestic to New Mexico without the necessity of taking hold the radio broadcast or broadcasters.

Chief Justice Earl Warren: General is there no legislative history of any kind on this subject to indicate that Congress considered it one way or the other?

Mr. Cox: We have -- we have discovered them, Mr. Chief Justice.

There are those hints that I quoted --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- at the beginning of my argument --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- that speak of centralizing authority and enacting legislation for the benefit of all the people of the United States.

I mentioned only in that connection that licenses of course are issued without regard to state lines because of the necessity.

Chief Justice Earl Warren: Yes.

Mr. Cox: Technical necessity of disregarding.

I appreciate the extra time.

Chief Justice Earl Warren: Mr. Hartley, and should you need five minutes more, you may have it -- you may have them --

Argument of Earl E. Hartley

Mr. Earl E. Hartley: To be able to give the Court back some of the time that had been allocated.

Chief Justice Earl Warren: Yes, thanks.

Mr. Earl E. Hartley: Mr. Chief Justice, may it please the Court.

We are dealing here with a statute enacted by the legislature of the State of New Mexico involving the protection of a health of its citizens.

It is a health measure.

It is directed at all of the peoples of the State of New Mexico.

It is a measure that makes it a misdemeanor for anyone within the State of New Mexico to advertise glasses or other types of fittings for the eyes with what we would ordinarily term bait advertising.

We can think of nothing that it is more precious to the human being and the matter of health than good eyesight.

We can think of nothing that could be appreciated more in the State of New Mexico than good eyesight.

We had undoubtedly the widest variety of beautiful scenery and other types of scenery.

We also --

Justice Byron R. White: Well, I don't know about that.

Mr. Earl E. Hartley: Our sister state of Colorado possesses some of these things that are here, Your Honor, but Texas is almost devoid and –-

Justice Tom C. Clark: Well, you have (Inaudible)

Mr. Earl E. Hartley: We have one peak, Mr. Justice Clark.

Justice Tom C. Clark: I never knew it.

Mr. Earl E. Hartley: Now, that we must get into side arguments, but in this connection, we have also become the center of the universe under the new nuclear age.

We have the laboratories in which -- made your portion of the nuclear development is taking place, the testing grounds, and we also are producing about more than 80% of the nuclear fission of all materials, making it more than ever important, that we protect the eyesight of the citizens of our State.

As the commercial aspect of this thing is incidental, it's de minimis.

The examination by professional people of eyes and the prescription for their care, and if necessary the fittings of lenses is one that is necessarily of a local nature.

The transaction takes place outmost inclusively within the examiner's office.

This Act has been referred to as the Optometrist's Act.

Actually, the Board of Optometry is simply the one that has been designated by the state to enforce the Act.

It would prohibit little work from advertising glasses and prices.

The type of action here are the type of enactment is not at all unusual as it's been pointed out by Mr. Justice Goldberg, 31 of the States have similar enactments.

We also have enactments in the field of agriculture, field of animal husbandry, and practically, all of the special fields of professional care of human beings, similarly important, some going much further than this.

It seems to me that, if we should fail to prevail in this action here, that it would let the bars down to a great number of possible evils that the States are best fitted to care for.

The Solicitor General argues preemption so far as the radio stations are concerned under the Federal Communications Act.

But with reference to the particular type of -- the type of misdemeanor here committed, is a nebulous field in which they may or may not at some future date enter into the field of to take care of them.

We would hope and assume that if and when they do enter the field that they will see the wisdom of this type of action, this type of enactment, and prohibit under their regulation this type of advertising.

We think that certainly the field of commercial advertising has -- is considerably different than the field of free speech that we're talking about two different things entirely, that the interest of the State of New Mexico is such that we have devised a means of taking care of these local instances with this type of action that gets immediate action whereas, the Federal Communications Commission indicates they might take in consideration in renewal of a license of which the State has no notice of the hearing or anything in connection with it.

Chief Justice Earl Warren: General, may I ask you this question.

Suppose the Government and the State should conflict on some health policies.

Let's take an issue like fluoridation of water and suppose the national government believe that it was in the interest of public health to encourage fluoridation of water, and it would extend -- give money to cities and counties in water districts to do that with water.

And on the other hand, the State should say that it is against its public policy -- its health policy to have such a thing and it prohibited the fluoridation of water or the advertising of any water company to the effect that it did fluoridate its water.

What -- what would the situation be then?

Which would prevail with the -- would you be able to prevent them from doing this?

Mr. Earl E. Hartley: In the field of interstate commerce, Your Honor, I -- we would possibly have to defer to the Federal Government's enactments along that line.

Chief Justice Earl Warren: Isn't this interstate commerce?

Mr. Earl E. Hartley: This is interstate commerce, insofar as the advertising is concerned.

Not so far as the fitting of the glasses is concern, but simply as far as the advertising, nothing else.

But even there, the Federal Government has not seen fit to move in and make regulation concerning this.

Chief Justice Earl Warren: Well, suppose you have a water works in Texas that serve water in New Mexico and you have the situation arise that is legal in -- legal in Texas and was not legal in New Mexico?

Mr. Earl E. Hartley: In the matter of the serving of the water in New Mexico, the New Mexico could stop it under their police powers, Your Honor.

Chief Justice Earl Warren: But could they stop the radio station from advertising that the Texas Company does do that?

Mr. Earl E. Hartley: If the Federal Government had moved in and taken over in a preemptive statute or regulation concerning the advertising, then they could not stop the advertising.

Chief Justice Earl Warren: Well, there's a test whether the Government effectively closes all the loopholes or whether it just intends to cover the subject.

Mr. Earl E. Hartley: The test would be whether it effectively covers the specific items, Your Honor.

And the -- I cannot conceive of a situation where the state and the Federal Government would be so far removed from each other with -- with reference to scientific data concerning these matters.

But assuming that they were, then the State would still have those police powers for the protection of its own citizens so far as the actual sale or disposal of the water or glasses or what have you dealing with the health of its citizens.

The commercial end of the thing is as I say de minimis, very local situation.

Even in this instance, Dr. Roberts could have continued to carry a respectable type of name advertising.

He was only prohibited from advertising prices in such a manner as would induce people to think that they were getting some special bargains by going to him.

Justice Hugo L. Black: What is meant here by the Act that said, advertising by any means, quotation and prices, and so forth, which quotes discount to be offered on eyeglasses, discount of what?

Mr. Earl E. Hartley: That's just the part of the bait advertising, Your Honor, if you don't know what you're discounting from, designed primarily to keep from baiting the people into buying something that they may not have any perfectly use for whatsoever.

Some of these scholars would fit you with window panes if they had the opportunity to charge you for it.

Justice Hugo L. Black: Well, this -- this seems something, let's say, advertising if you sell at a discount.Does that make it a crime?

Mr. Earl E. Hartley: Under this Act, it is a crime because it deals with the health of the persons of the State of New Mexico.

Justice Hugo L. Black: They could have better health if they denied the privilege of buying at a discount?

Mr. Earl E. Hartley: It's not matter of buying at a discount, Mr. Justice Black.

It's a matter of being enticed into examination and so forth by this type of bait advertising.

Justice Hugo L. Black: Moderate prices, that's also a crime, if the advertiser does moderate prices.

Mr. Earl E. Hartley: With reference to eyeglasses, yes, sir.

Justice Hugo L. Black: With this policy, the prices (Inaudible)

Mr. Earl E. Hartley: That's right, Mr. Justice White.

It's the essential thing; it's proper care of the eyes and the preservation of eyesight.

Justice Hugo L. Black: Well, --

Mr. Earl E. Hartley: We are --

Justice Hugo L. Black: -- prices had no harm on him?

It seems to be they're always (Inaudible) by prices, and there's no way it threatens?

Mr. Earl E. Hartley: The profession itself we hope does do some policing of its memberships, that's the same as the Grievance Committee of the Bar Associations, under those types of things.

It's the ethics of the profession -- it is the professional standards that we are interested in and that our citizens may secure proper professional treatment.

We would assume that the ethics of the profession, the high standards required in New Mexico would also protect them on unconscionable prices.

If I may, I would refer --

Justice Hugo L. Black: This doesn't say anything about that, does it?

Unconscionable price is too high.

Your argument maybe judged without just -- testing it out.

Suppose you had this same thing with reference to A and B stores and all the groceries stores, with foods there important to people, if they paid more for it, it might be better.

Mr. Earl E. Hartley: That's true and of course in that respect, the Food and Drug Act of the -- the Federal Food and Drug Act does offer protection from contaminated food.

But their prices --

Justice William O. Douglas: But you -- you come back, I gather, to the rationale of our opinion in the Lee Optical case of Oklahoma.

Mr. Earl E. Hartley: Yes, Mr. Justice Douglas.

Your rationale there is well-stated and well-taken.

If I may, I would like to defer the technical end of this argument to my special assistant who has been in -- on this case from its inception to date.

Chief Justice Earl Warren: Mr. Pyatt.

Argument of Robert F. Pyatt

Mr. Robert F. Pyatt: Mr. Chief Justice, may it please the Court.

Yesterday, at the bar, we understood that some question arose concerning Dr. Roberts which question may have been raised by Mr. Justice White.

His Honor would like some clarification of that.

I believe we are prepared to do so, albeit the remarks would be outside of the record.

Justice Byron R. White: Was he ever in Hobbs?

Mr. Robert F. Pyatt: No, Your Honor, he was not.

He did practice at Clovis, New Mexico at one time, prior to going over into Texas.

Justice Byron R. White: What's the economic explanation of the little community that's growing up on the border?

Mr. Robert F. Pyatt: Between Texas and New Mexico.

Justice Byron R. White: Yes.

Mr. Robert F. Pyatt: The economic explanation, I believe, Your Honor, is that we might characterize that community as cut-rate row.

I think the businesses exist out there solely because services and goods may be sold cheaper than they can in New Mexico.

I found that gasoline --

Justice Byron R. White: That's including the sales taxes or not?

Mr. Robert F. Pyatt: Texas sales tax, Your Honor, is not as high as that of New Mexico's sales tax.

And on some commodity if I understand the Texas law correctly, it does not impose the sales tax at all.

Gasoline is cheaper over there.

They may lawfully sell fireworks in Texas which you may not lawfully do in New Mexico.

Justice Byron R. White: And eyeglasses at a discount.

Mr. Robert F. Pyatt: And eyeglasses at a discount, yes sir.

If we correctly understood, the appellant's counsel yesterday, I believe he said that the evil of New Mexico was action in part is that it results in New Mexico and Texas residents both, not being able to run of the presence of the Dr. Roberts just east of the New Mexico Texas state line.

Now, if our understanding is a correct one, I think it should be called to the Court's attention that the New Mexico law does not prohibit advertising by the optometrist.

He may give an ad, advertising the fact that he practices optometry and his location and what have you.

But he may not say cheap glasses, glasses at a discount, and words of similar import, so the fact that his presence where he now practiced may be advertised by him.

Justice Arthur J. Goldberg: But, Mr. Pyatt.

Mr. Robert F. Pyatt: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: Yes, sir.

I think --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: Yes, sir.

I think that is true, Mr. Justice Goldberg.

And in our view of the case, the preemption question is the -- the most significant issue at bar.

Now, perhaps first of all and therefore behooves us to examine that -- that the test of preemption that this Court has laid down -- pardon me.

In the Huron Portland case, it was said that actual conflict which the law of the state determines whether or not the field has been preemption -- preempted.

And we would respectively call the Court's attention to the fact that neither the Government nor the appellants have pointed out a conflict between the New Mexico Optometry Act and the Federal Communications Act.

Furthermore, they have not pointed out a conflict between the New Mexico statute as administered in this case and any applicable regulation or rule of the Federal Communications Commission.

Indeed, they conceive that some rule is left to the States to act as against radio broadcasters in interstate commerce, dwelling greatly on Kelly against Washington, it was there said that the test preemption is whether or not the state and federal laws are in direct and positive conflict.

We submit there is underlying fact in this case.

Now, opponents rely heavily on the Third Circuit decision in the Dumont case wherein in all accounts, the Court of Appeals said that Congress has occupied the field but it becomes relevant to examine the factual setting of the Dumont Case.

And the Pennsylvania and federal statues therein involved.

In the first place, Pennsylvania had pure and simply set out on a program of censorship.

It required submission of films to be used in televising to a Board of Censors prior to showing them.

The Pennsylvania Act was thus directed at broadcasting as such.

New Mexico's Act is entirely different.

It seems to us that the Government's argument presupposes here in this case that New Mexico has set about upon a scheme of regulating the radio industry.

But that is it not yet at all if we may say so.

We have set upon a scheme of public health regulation in particular, the human eyesight, which this Court sustained in Williams.

The federal statutes involved in the Dumont decision where those treating of license suspension for indecent or false transmission, and the criminal sanctions for doing the same thing.

Hence, there was a clash with the Pennsylvania statutes, which I assume, were designed to prevent the Pennsylvania residents from the seeing suggestive or indecent television programs.

Now, it is in this context that the Court will speak when in Dumont, it said, that Congress has occupied the field and when it said that what Congress has done is to enact an effective remedy.

Here, we are concerned with truthful advertising, not false advertising, and certainly obscene utterances formed no part on this picture.

Furthermore --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: Yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: Mr. Justice Goldberg, the remedy of criminal prosecution was open to the State under those facts against to both the radio and the newspaper of course.

However, it seemed to us at the time that the civil proceeding of injunction would be more effective for one reason.

The criminal prosecution of course would -- or could in tie -- entail repeated prosecution for each utterance.

Of course, that is extremely harsh for one thing and it's extremely expensive on the State to bring criminal prosecution after criminal prosecution if the broadcaster persists in promulgating the prohibited advertising.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: Well -- but not for very long Justice Goldberg.

Again, as much the offenses of misdemeanor and not a fe -- felony under New Mexico law.

Justice Arthur J. Goldberg: The law (Inaudible)

Mr. Robert F. Pyatt: Well, yes sir but not for as long a time as for a felony conviction.

Justice Hugo L. Black: Is it your position that New Mexico can enforce this rule as to any valid law which can be applied to the people of the State?

Do you -- is that -- suppose, there are many things that New Mexico might not like on its radio programs that other sections would, you would see no restriction to that throughout the country.

Suppose it passed a law that by a reason of certain things, the people in New Mexico couldn't show certain kind of pictures, which were not ranked as indecent, obscene, whatever it means, could you enforce that rule?

Mr. Robert F. Pyatt: In the example that you profound to us Mr. Justice Black, I do not think that New Mexico could enforce a law which said certain kind of pictures could not be shown even though not obscene because there, we would be in conflict with Section 326 of the Communications Act which prohibits censorship.

Justice Hugo L. Black: By the Commission?

Mr. Robert F. Pyatt: Yes sir, by the Commission.

Justice Hugo L. Black: You would call -- you would call that censorship and would not call this censorship?

Mr. Robert F. Pyatt: No sir, let me explain.

Justice Hugo L. Black: It's based on the idea that is commercial advertising over the other.

Mr. Robert F. Pyatt: Mr. Justice Black, that is true.

Perhaps, I might explain it this way.

We believe that censorship is the other side of the free speech coin.

In other words, a situation like you had in Near versus Minnesota.

On the other hand, when you have a situation involving commercial advertising as we now have at bar, we have something akin to the Valentine versus Chrestensen case.

In those situations, that is dealing with commercial advertising, like the Court had in Railway Express versus New York, we believe that the States may prohibit cert -- prohibit that commercial advertising when as in the Williamson case, there is a sufficient police power basis to do so.

Now, interestingly enough, the Dumont decision was decided by the Third Circuit Court of Appeals.

Subsequent to that decision, that same Court decided the case of Felix versus Westinghouse at 186 F2.d 1, in which it held that the Pennsylvania libel law was upheld as against a broadcaster for remarks, which were libelous, uttered by a candidate's campaign manager.

In other words, the Third Circuit restricted the application of Section 315 of the Communications Act to speeches uttered by the candidate himself.

So, one wonders if --

Justice Hugo L. Black: What was the name of that case?

Mr. Robert F. Pyatt: It was Felix versus Westinghouse, Mr. Justice Black.

Justice Hugo L. Black: It is cited in your brief that --

Mr. Robert F. Pyatt: No, sir it is not.

It is at 186 F.2d 1 and was decided by the Third Circuit.

So, one wonders if that court in its subsequent decisions still entertain the same view that the Communications Act had occupied the field as it stated in the Dumont decision.

This Court has decided the case of Radio Station WOW against Johnson in which it upheld an action by the Nebraska Supreme Court in which the Nebraska Court had decree a retransfer of licensed facilities on a finding a fraud conceding of the -- the Nebraska Court of course, conceded that it had no jurisdiction to order a retransfer of the license itself.

Now, as this Court stated, the result of the Johnson case could well have been termination of the broadcasting decision.

Yet, it was stated that there was nothing in the Federal Communications Act dislodging the power of the States to deal with fraud simply because a licensed broadcaster was involved.

Now, we submit that by the same token, there is nothing in the Federal Communications Act dislodging the power of the States to deal with the health question of this import.

In Johnson, it was held that the public interest which the Commission must protect is involved in granting licenses which can hardly imply that state laws are nullified.

Now, we submit that state laws on health by the same line of reason have not been nullified simply because licensed facilities are being used as instruments for thwarting a legitimate public health policy of the State or is it amiss to consider the impact of the state action, first and foremost, is that in Johnson termination of the station was possible.

There is nothing like that present in the case at bar.

It becomes important from a practical standpoint, and that the appellant Permian does not even show anywhere in the record in this cause that the prohibition of running these ads entails a loss of revenue to it.

Now, it is also the impact of the state action affirm the federal agencies' regulatory tasks, that must be considered in determining the issue of preemption, not whether as the Government says.

The state action involves a traditional or well-known, or common law remedy or whether the state action involves modern day concepts of health or welfare or social legislation.

Now, the appellants and the United States failed utterly to show how the decree would interfere with Federal Communications Commission duties.

The obedience of this decree by the appellant Permian will not entail disobedience by Permian of any rule or regulation of the Commission or of any statute of the United States.

And furthermore, the United States fails to cite authority for its assertive distinction between traditional common law remedies on the one hand which they state -- which they say the State may impose, and the enforcement of public remedies under health legislation on the other hand, which the Government says, the State may not impose.

Regents versus Carroll decided by this Court, is a great interest, for there, there was a clutch between the state action and the federal action.

In that case, there was a stock purchase contract involved.

The Federal Communications Commission required repudiation by the broadcaster of that stock purchase contract prior to a renewal of the license.

On the other hand, the Georgia courts enforced the contract and awarded monetary damages in the amount of a $145,000.00 which state action this Court upheld.

Now, the language of the opinion is interesting, and that this Court said that it realized that it was upholding a state judgment which in effect nullified a Communications Commission order, stating that what it was doing was out of proper regard for both the federal and state interest.

Now, the state interest there of course were -- was to uphold the sanctity of contracts entered into in that state.

Here, the state action is far more significant, we think, far more important by virtue of the fact that human eyesight, a legitimate health measure is involved nor is there any risk in the present case that an affirmance of the Supreme Court of New Mexico would in effect nullify a Commission order.

There is -- there is no risk of that here as certainly there was in the Carroll case.

I think it's highly important to consider the results of a holding that the field has been preempted in this case.

If this Court should agree with the Government and hold that the field has been preempted, then New Mexico and 49 other States are powerless to deal with this kind of bait and switch advertising which may be run over a radio.

Not only is that true in the field of optometry but it would be true in the field of dentistry, it would be true in the field of medicine, and even inconceivable though it might sound, in the field of law.

Justice Hugo L. Black: Suppose it was newspaper published in another State, brought into New Mexico, would you bar that?

Mr. Robert F. Pyatt: Justice Black, I think not.

I do not believe that New Mexico could prohibit, let us say, a newspaper in Arizona from running price advertising of glasses.

I don't think we could prevent either that -- that publication in Arizona or the entrance of that paper from Arizona into the State of New Mexico.

Justice Byron R. White: Even if that -- even if it then provides a New Mexico product?

Mr. Robert F. Pyatt: I had assumed Justice Black's question, Justice White, was as to the sale of glasses in Arizona.

If it -- if it advertised that those glasses could be sold in violation of the price advertising features of our act in Arizona -- or in New Mexico, then under those conditions, I think New Mexico would have a sufficient basis to exclude that paper from New Mexico.

Justice Hugo L. Black: That would be under the -- because you'd say that you have a right to prevent that, now, the whiskey cases are written in the dry states, but the law was sustained, rested on the passing of an Act of Congress --

Mr. Robert F. Pyatt: Yes sir, the Wilson Act, it did, Justice Black.

Justice Hugo L. Black: Are there any of them sustained but did not rest on an Act of Congress.

Mr. Robert F. Pyatt: Yes sir, there was -- not by this Court unfortunately, that I can recall at the moment.

In our brief, we cite the case of Solomon -- the Solomon case.

It was an Indiana decision which the -- there was a local ordinance which the Indiana courts upheld excluding newspapers from coming into that city which advertise horseracing contrary to local law.

Justice Hugo L. Black: Prison-made goods, I believe that was under an Act of Congress.

Mr. Robert F. Pyatt: That was under an Act of Congress.

Yes, Your Honor, it was.

Justice Hugo L. Black: That -- that has been stricken down before that Act of Congress was passed?

I do not recall.

I was asking you.

Mr. Robert F. Pyatt: Mr. Justice Black, I apologize.

I don't recall either.

Justice Hugo L. Black: Well, I don't recall.

Mr. Robert F. Pyatt: I don't recall either, whether this Court struck it down and then the Congress had to render the enactment, make the enactment, or whether there was no adverse decision prior to --

Justice Hugo L. Black: Under it, there was quite a controversy over that for a time.

Mr. Robert F. Pyatt: Indeed there was.

Justice Hugo L. Black: Congress did pass an Act.

Mr. Robert F. Pyatt: Yes, sir.

Justice Hugo L. Black: There were many states that prohibited the sale of prison-made goods and the Act that's passed by Congress, I suppose, led to make those legal despite the Commerce Clause.

Mr. Robert F. Pyatt: Yes sir, it was.

Justice Arthur J. Goldberg: General, would you (Inaudible)

Mr. Robert F. Pyatt: If this -- if this comparable situation were present, Mr. Justice Goldberg, I think it would -- I think it would apply because --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: No, to be sure, it is not and perhaps it doesn't --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: Excuse me.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: Well, there Your Honor, we would of course not have the health measure to rest upon.

But it is my theory that New Mexico could enforce that law, the basis I believe you'd say for the limitation upon the number of items that may be advertised, is all part and parcel of New Mexico's fair trade law.

And there, I think we have a constitutional basis for enforcing the provisions of the Fair Trade Law including the advertising sections.

Justice Hugo L. Black: You rely for that on an Act of Congress, permitting a fair trade law?

Mr. Robert F. Pyatt: Your Honor, I must confess that I do not know the effect of an Act of Congress pertaining to the enforcement by the States of its fair trade laws.

I do not know.

I'm sorry Mr. Justice Black.

I cannot answer the Court's question there.

Justice Hugo L. Black: You say that constitutionally without regard to where the Congress has passed such law, you believe you could.

Mr. Robert F. Pyatt: I believe we could Your Honor.

Yes, sir.

In the case of Kroeger versus Stahl which again was a decision by the Third Circuit and which followed the Dumont case and the Felix case, the radio station owner therein contended that enforcement of the local zoning ordinance which prohibited -- had the effect of prohibiting the erection of radio station in a zone restricted to residential purposes, conflicted with the Communications Act.

The Court held that there was no sufficient, in that case, since that supersession in that case, since there was no direct and positive conflict between the Communications Act and the zoning ordinance.

Now, the practical effect of the Stahl case was highly significant.

It prevented the erection of a radio station for broadcasting which had to have an effect upon the content of programs.

It is also interesting from this standpoint that the case of Kroeger against Stahl involved in instance where a state was permitted to enforce not a traditional common law remedy but rather a modern day regulatory concept, namely zoning.

Furthermore, we submit that sight should not be lost of this Court's decision in the Sanders Brothers case since therein it was said that program control is not given to the Federal Communications Commission as such.

In other words, the Sanders case pursuant to Section 326 of the Act said that there shall be no program control by the Communications Commission.

Now --

Justice Hugo L. Black: Has the law been the same in this respect since the Sanders case?

Mr. Robert F. Pyatt: No, sir.

If I am correct, Your Honor, and I am reasonably sure on myself on this, Section 326 has not been amended since the Sanders case was decided.

In any event, Section 326 is still on the books, you may say, and certainly does not change the effect of the Sanders decision in that respect.

Now, a large argument of the United States is that programs and advertising are to be considered by the Federal Communications Commission in either in application, a renewal, or a revocation proceeding.

Now, that does not exclude state jurisdiction of the type attempted to be asserted here.

If, as the Government suggests, the Commission on a renewal proceeding would give consideration to whether or not the state law had been obeyed, it has been conceded by the Solicitor General that that is just one factor out of a great many that would be pertinent or relevant in the renewal proceeding.

And even if the Commission were to look into the question of whether there had been obedience by the broadcaster to state law, it would of course have to refer back to the state law.

There would be no conflict in a case like that.

There would be no preemption.

Rather, there would be a reference.

Now, it's -- it's been mentioned by the Solicitor General before the bar that even if there had been a few isolated instances of disobedience by the broadcaster which came to light in a renewal proceeding, it would nonetheless be quite doubtful if the Commissioner would refuse under those conditions to renew the license.

It therefore, as a practical matter, falls back upon the States where these health measures have rested traditionally.

Furthermore, the Government conceives that the Communications Act does not broadly withdraw from the States the power to redress private wrongs since the Act contains no remedial provisions for private persons.

But the same is equally true of public wrongs.

The Act contains no provisions permitting the redress of public wrongs by the States, either for violation of health measures or otherwise.

Aside from the question of preemption in the Huron case, the ship owner therein argued that uniformity was necessary by virtue of the Commerce Clause itself even absent a preemption.

And this Court held that what was enacted there by the City of Detroit was a legitimate health measure.

Now, here in New Mexico centers is that of eyesight.

Detroit centers was in map of pure air, but the effect of Detroit's action upon interstate commerce could certainly have been more disruptive or potentially more disruptive of uniformity than the action of New Mexico in the case at bar, for the simple fact was that alterations in the ship's structures would have been necessary in order to comply with the Smoke Abatement Code.

Those ships necessarily had to touch at other ports upon the Great Lakes.

Potentially, there was a disruption of uniformity because other ports could have had different requirements as to the smoke, the abatement of smoke.

Here, the appellants are only amenable to one law and that is New Mexico.

Justice Potter Stewart: You're not supposing that Huron case, that any -- any port would have required the ship to emit a certain amount of smoke?

Mr. Robert F. Pyatt: Oh, I -- no, I wasn't suggesting that, Justice Stewart.

But another port could have had more stringent smoke abatement requirements than did the port of Detroit.

That, that was all I meant to suggest there.

New Mexico's action is essentially low.

It has not set out to regulate broadcasting.

It has not set out to regulate newspapers.

It has enacted a measure which in this -- which has this Court has held in Williams.

It's perfectly proper.

The fact that interstate commerce is involved at all in the case at bar is purely incidental.

For example, in the case of Panhandle Eastern Gas Line versus Michigan Public Service Commission, there the Court said that Congress had only occupied a limited field in the entire scope of regulating the natural gas industry and the transmission of natural gas.

In other words, it had not legislated on the subject of direct sales to the ultimate consumer.

And hence, there was left a certain amount of room for state regulation.

This Court said that there was no preemption because there were no opposing directives.

Now, that may be said equally here.

There is no opposing -- there is no directive in the Communications Act as to professional advertising -- true, false or otherwise.

So you don't have the situation of opposing directives which the Court held in Panhandle was the test of preemption.

Aside from the question of preemption, the sales in Panhandle were matters of local concern.

Hence, the certificate of public convenience and necessity could have -- was required by the State of Michigan of Panhandle before it could engage in the sales to the consumers.

Now, that is severe state action which this Court upheld there for the power to require a certificate of public convenience and necessity comes awfully close to the power to prohibit activity all together by the gas company.

But we find inconceivable to believe that eye care is of less concern and the States are less brave to act in that field and in public utility regulation.

Indeed, the balancing of the interest over the State and the nation in this case gives rise to a situation where the need for the State to be free to act barely cries out for an affirmative.

This is a matter that has been traditionally left to the State, public health.

Congress may never act.

Indeed, I think it's safe to say that Congress may never even want to act or concern itself with it, but it falls back upon the States.

Now, if this Court holds that preemption has occurred, then the States are powerless to prohibit this form of advertising over the radio.

The appellants placed great stress upon the case of Baldwin versus Seelig in the aspects of interstate commerce.

We do not believe that case was in point.

There, New York had said, “You can't bring this milk in into New York unless you have paid in Vermont the same price you would have had to have paid in the State of New York.”

We do not say that a newspaper originating in Texas cannot come into New Mexico.

We do not say -- perhaps more apropos, we do not say that a radio station in Texas could not promulgate this form of advertising, even though subsequently heard in the State of New Mexico.

But what we do suggest that the local regulation of this advertising is permissible to New Mexico because the cert -- the health of its citizens are involved.

It is what New Mexico residents here in New Mexico that is involved in this case.

And certainly, local regulation of advertising, even though that advertising is interstate is on no higher plane than anything else.

For example, there is the case of Railway Express Agency versus New York City.

There is -- you can't dismiss, as appellant seek to do the Railway Express case, simply by saying that traffic regulation was therein involved.

In fact, this whole concept of permissible local regulation of local incidents in interstate commerce, commerce, arose with the traffic case, Cooley versus Board of Port Wardens.

There it was -- the States were allowed to make certain requirements of harbor patents.

So the whole concept of local regulation of a certain incidence of interstate commerce arose in a traffic case, we might say.

Justice Hugo L. Black: How are your prices fixed for glasses in New Mexico?

Mr. Robert F. Pyatt: They -- they aren't Justice Black.

It is -- it is for the individual practicing optometrist to say what he shall charge for both his lens and his frames.

And also, it is for the individual optometrist to say how much he shall charge for such services as eye examinations.

Those are not fixed by any regulatory board.

Justice Hugo L. Black: But the purpose of this, as I understood you, is to aid help by keeping the prices up higher.

Mr. Robert F. Pyatt: The purpose of this is exactly -- excuse me, Mr. Justice Black.

Justice Hugo L. Black: Which is -- which was upheld intrastate in Williams.

Mr. Robert F. Pyatt: Yes, sir.

The, the purpose is the same as in Williams -- to prevent all who deal with so precious a thing as human eyesight from resorting to any of the methods of commercialism.

Justice Hugo L. Black: Now, Miller-Tydings Act grants a state's authority to do what's you called burden in commerce by price fixing if the state wants to do that.

Mr. Robert F. Pyatt: Yes, sir.

But here we don't.

New Mexico does not fix minimum prices for optometric services, lenses or frames or anything like that.

Justice Hugo L. Black: What was the necessity for having the Miller-Tydings Act if your argument is right here because the Schwegmann case was decided under the Miller-Tydings Act, which was the sale of whiskey within dry states?

Mr. Robert F. Pyatt: The sale of whiskey sir?

Well, as to the liquor cases, there was the Wilson Act, enacted by Congress as to whiskey act.

There was the Wilson Act.

Justice Hugo L. Black: It had to be, didn't it?

Because despite the fact that whiskey is considered at many places being injurious to health, many States has prohibited entirely, that law had to be -- that Act had to be passed, isn't it?

To permit states to do anything at all with reference to regulating the sale of whiskey in them through interstate commerce.

Mr. Robert F. Pyatt: I think not, Your Honor, I -- of course there was a legitimate concern by Congress that the States might not be able to act.

But we contend that the States could have acted to have prevented the advertisement of intoxicating liquors against their law if those ads have originated within the particular state, even absent the Wilson Act.

Justice Hugo L. Black: As I recall the main -- I wouldn't call it lobbying, but the main association, the main activities of the passage of the Miller-Tydings Act came from the drug use case to deal in med -- medicine for the human beings.

Mr. Robert F. Pyatt: I see.

Justice Hugo L. Black: Is that right?

Mr. Robert F. Pyatt: I don't know, Justice Black.

I don't know what --

Justice Hugo L. Black: It's the law that permitted states to fix prices, but this Court first, struck it down on the ground -- on -- partly and the Congress had amended it, so as to extend it giving further power to the States to fix prices.

Now, yours is not fixing prices --

Mr. Robert F. Pyatt: No, Justice Black.

Justice Hugo L. Black: But it is indirectly aimed at it, isn't it?

Mr. Robert F. Pyatt: No, Your Honor.

That is not the aim, either the direct aim or the indirect aim.

It is not to fix prices; it is to prevent those people around -- who deal with the human eye from resorting to the methods of the marketplace in placing their advertisement.

It is designed to prevent the cutthroat competition from entering the field of human eye treatment.

Justice Hugo L. Black: It's a law which if it had been -- that same regulation had been adopted by agreement of (Inaudible) would have violated the Sherman Anti-Trust Act, didn't it?

The Clayton Act?

Mr. Robert F. Pyatt: No, no, I think not Your Honor because -- well in here, what New Mexico is doing here is to prevent the advertising of frames by optometrist or lenses or what have you, for any reason --

Justice Hugo L. Black: At discount prices?

Mr. Robert F. Pyatt: At discount prices for --

Justice Hugo L. Black: But then extends if it bars them from trying to sell at the price they want to sell?

Mr. Robert F. Pyatt: Well, in that sense, yes, Your Honor.

We must concede that there is some inhibition upon their advertising, that they want to sell at this or that price.

Now, they may go ahead and sell at any price they want to.

The law does not say that they must receive so much for the lands or so much for the performances.

Justice Hugo L. Black: They certainly can't tell anybody about it?

Mr. Robert F. Pyatt: They just can't tell anyone that I am selling glasses cheaper than X or I am selling glasses at so much higher.

Justice Hugo L. Black: They can have a competitive system, but they can't advertise?

Mr. Robert F. Pyatt: They can have a competitive system, that is right, Justice Black, but they can't resort to price advertisement of that competitive sort.

Justice Hugo L. Black: I'm asking you this question because there doesn't seem to have been much discussion on the fact that the Court has held in many cases that with reference to the price fixing and handling of things of this kind, the states can't interfere with what interstate commerce permits to flow through except when Congress passes an Act permitting it.

There have been many cases of that kind.

Mr. Robert F. Pyatt: Yes, I understand that, Your Honor.

But we are not dealing with the interstate traffic in glasses.

Justice Hugo L. Black: We're dealing with the advertising of the interstate --

Mr. Robert F. Pyatt: Yes, Justice Black.

We are dealing with advertising which we much admit is over -- is through interstate commerce because of these radio signals crossing the state line.

But we are not dealing in interstate commerce of glasses or frames.

That is not involved at all.

Justice Hugo L. Black: Do you think that the setting of the -- of your law in connection with the question of preemption or burden of commerce, in a light was sown on it by the many times that Congress has permitted states to enforce laws which were valid within them, to apply them to interstate commerce transactions?

Mr. Robert F. Pyatt: No, Your Honor, I don't think so.

I think I have a vague idea of what is of His Honor is driving at, and the vagueness is my fault of course.

But I don't think that is in the picture here.

I don't think that is relevant.

I think here what we have is a Williamson situation, albeit that there are minor differences between the facts.

Justice Hugo L. Black: But you'll have a Williamson situation, if all you were doing was enforcing it inside the State with reference to people who advertise to sell inside?

Mr. Robert F. Pyatt: Yes, Justice Black.

Justice Hugo L. Black: I don't think there's any doubt about that.

Mr. Robert F. Pyatt: I was going on to say plus the fact that the advertising against state law is promulgated in interstate commerce.

And we don't have a federal statute on the subject that we have been able to discover nor is there a regulation by the Communications Commission, which we have been able to discover.

Now, in the fair trade and anti-trust fields, I know there have been volumes of federal legislations on those subjects which permit the States to act where perhaps in some instances, they could not have otherwise acted.

Here we are neither in fair trade or anti-trust.

Justice Hugo L. Black: Suppose the State of New Mexico had the sudden specific thing that cannot be done in other interstate commerce transaction, like selling to one person cheaper than another, things of that kind --

Mr. Robert F. Pyatt: In interstate commerce?

Justice Hugo L. Black: Suppose that Mexico decided it -- New Mexico decided to adopt the policy of letting people fix -- sell at different prices?

Even though that matter came from outside the State, could they do that?

Mr. Robert F. Pyatt: I think not, Justice Black.

If I understood your question correctly, it was -- a hypothetical one if New Mexico prohibited certain people from selling to others in interstate commerce, there you would have --

Justice Hugo L. Black: Fix the terms on which the sales could be made, but which contrary to those fixed in the Clayton Act?

Mr. Robert F. Pyatt: No, sir.

That if we can -- if New Mexico's enactment were contrary to the Clayton Act, it would fall under the supreme law of the Land Clause.

To take His Honor's earlier example, if New Mexico sought to fix the terms of certain sales from one party to another in interstate commerce, it then would have enacted a law directed at interstate commerce and which on it's face purported to regulate interstate commerce.

No sir.

Here, New Mexico's law is not discriminatory and indeed the appellant's have not suggested that it is.

And the affect on interstate commerce here is incidental to the enforcement of the legitimate police power measure.

Interestingly enough, Justice Black in the Williamson case which we were discussing, this Court said that it saw no constitutional reason why all who deal with the human eye shouldn't be prevented from resorting to commercial methods.

That's all New Mexico --

Justice Hugo L. Black: So far I'm concerned that case settles your question --

Mr. Robert F. Pyatt: I think --

Justice Hugo L. Black: -- insofar as transactions wholly within the boundaries of New Mexico are concerned --

Mr. Robert F. Pyatt: Yes, sir.

Justice Hugo L. Black: -- and insofar as it does not -- your law does not attempt in any way to regulate radio transmission, contrary to the either expressed or implied coverage of the radio, of this radio ad?

Mr. Robert F. Pyatt: Yes, sir.

But I refer the Williamson in this connection.

Point has been made by opposing counsel that here New Mexico's action isn't operating against the optometrist, rather it is operating against the advertising media with which the optometrist has chosen to place his advertisement.

But we think that it must follow from the Williamson case.

That like legislation directed against the advertising media is equally valid as was the Oklahoma legislation involved in Williamson.

That fact that New Mexico has chosen to be a little broader and prevent, not just the optometrist, but any person from promulgating this advertising is we submit simply a rational means chosen to achieve the same proper ends as were involved in Williamson.

Now, insofar as their --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: Justice --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: Justice Goldberg --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert F. Pyatt: It did start out, Justice Goldberg, pretty broad.

But later on there was a proviso in the Oklahoma statute to the effect that this shall not affect any newspaper or other -- I believe the words were advertising media.

But the other advertising media would have taken care of the radios to so.

They were exempted by means of proviso.

Now, insofar as freedom of speech is concerned, under the Semler decision, Semler versus Oregon State Board, there is no deprivation of either freedom of speech under the Fifteenth Amendment, Fourteenth Amendment, nor is there a deprivation of due process law, property, without due process of law, nor a denial of the equal protection of the laws.

The Semler decision said that there was no deprivation of either liberty, which could only have meant freedom of speech in that instance or property.

So any attempted distinction by the appellants or argument by the appellants, that freedom of speech is being fringed upon in this case has been settled by the Semler decision which incidentally held that it was irrelevant that the -- in that case the dentist advertising was truthful.

Insofar as privileges and immunities may be concerned, we simply call the Court's attention to Madden versus Commonwealth, where the right to carry on business beyond the state of the party's residence was held not to be a privilege and immunity of national citizenship.

To summarize, there is no state, there is no federal Act or regulation in conflict with New Mexico's Act.

It is simply a health measure under Williamson.

It does go a step further and reach advertising in this case which is promulgated in interstate commerce, but we think New Mexico -- the effect of New Mexico's action on that interstate commerce is simply a permissible activity, local in concern into the Railway Express, the Huron, the Kelly cases.

And we submit that there is no constitutional invalidity in New Mexico's action.

Chief Justice Earl Warren: Mr. Head.

Argument of Carol J. Head

Mr. Carol J. Head: Mr. Chief Justice, may it please the Court.

As I stated in my earlier argument, if appellee has repeated here, has conceded that New Mexico cannot and will not attempt in any way to prevent any advertising from the State of Texas from coming in to New Mexico via papers or radio broadcast.

All there's attempting to do here is prevent these appellants who might compete in papers and radio broadcast stations in Texas from disseminating the same advertising which they will not attempt to prevent from coming in.

Now, we submit that this discrimination certainly should not be tolerated under the prior cases of this Court that we've previously discussed.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Carol J. Head: I think this was perhaps a tougher case than gambling but I'd say no.

I would say no.

I would say that if -- if we -- if we accept the policy that each state as to various activities such as gambling and prostitution or advertising by professionals is entitled to set its own public policy.

And it seems to me that if Texas sets a public policy that is different, then the public policy set by New Mexico consistent with the du -- the Commerce Clause, certainly, New Mexico cannot impose its standards on Texas.

I would apply this to that situation.

Although admittedly, Mr. Justice Goldberg, it's something that might not be tasteful to people in New Mexico.

But the fact that it is not tasteful to people in New Mexico, it seems to me leaves them with recourse to Congress and I think perhaps under the Mann Act, there may be a proscription under this by virtue of congressional enactment.

I don't know whether the Mann Act really applies to advertising this enactment, I'm sorry.

But we submit that certainly, when you consider in this case that the optometrist is in Texas, his advertising originates with him.

He performs his services in Texas that the case should not turn on the fact that in this case, the type is set in New Mexico or the radio broadcasting voice starts in New Mexico, that the advertising, in a more ultimate sense, has started in Texas and it relates to the services to be performed in Texas, and we submit that this is an interstate transaction which is entitled to protection under the Commerce Clause.

Now, there are some points I would like to make very quickly.

One is that both counsel for the appellee have referred to this as bait and switch advertising.

The record will show that the only thing these appellants carried was price advertising.

I don't want the Court to get the impression that this was something more odious than it was because it was simply ba -- simply price advertising.

Another point made by the appellee is that the Dumont case involved censorship in terms of obscenity and that sort of thing.

Now, the statute involved in that case actually provides that the Pennsylvania Board and I'm quoting, “Shall examine or supervise the examinations of all the films, reels or views to be exhibited or used in Pennsylvania shall approve such films, reels or views which are moral and proper, and shall disapprove such as are sacrilegious, obscene, indecent, or immoral are such as tend in the judgment of board to the base of corrupt morals.”

I submit that this is a far broader statute than any of provisions that might have been involved in the sections of the Federal Communications Commission Act that the Dumont opinion mentioned.

Justice Potter Stewart: Also a very vague statute by contrast --

Mr. Carol J. Head: It is indeed and I think that vaguer the statute more leeway aboard administering it has historically, Mr. Justice Stewart.

At least more leeway they've exercised.

Now the --

Justice Potter Stewart: Some of your law that's an issue here?

Mr. Carol J. Head: Yes sir, it is.

Justice Potter Stewart: And there's no question about what -- what that mean.

There is no vagueness question about it all, isn't it?

Mr. Carol J. Head: We have not presented it.

I don't think there is any question.

It does say cover prices and these appellants have conceded that they carried price advertising.

This was simply all it carried.

Justice Hugo L. Black: Where are those advertising?

Mr. Carol J. Head: Sir?

Justice Hugo L. Black: Where are those price advertising?

Mr. Carol J. Head: Unfortunately, Mr. Justice Black, the record does not show the text of any of the advertisements.

I don't know why this is --

Justice Hugo L. Black: How can you get any advantage out of them, if they are not in the record?

Mr. Carol J. Head: I can't get any advantage out of them, but I don't think the other side should get any advantage out of their absence either, sir.

Justice Hugo L. Black: If you do not have them, how do we know they are price advertisements?

Mr. Carol J. Head: It stipulated in the record that these appellants have accepted price advertising.

That's the only word that you mentioned in the record in any sense as to what these appellants have done which the appellee claims violates the statute.

This was done by stipulation on the appellant's motion for summary judgment.

The stipulation was that these appellants had accepted price advertising.

There was no stipulation that they had accepted anything else and there's no evidence in the record that shows that they had accepted anything else.

Now, the appellee also mentioned with some apparent significance to the case of Semler versus Dental Examiners.

We submit that that has absolutely no relevance to this case, with the case involving -- I'm sorry.

Chief Justice Earl Warren: Finish your sentence --

Mr. Carol J. Head: That was the case involving the question of whether the State of Oregon could revoke the license of a dentist in Oregon, practicing in Oregon for certain practices including price advertising.

The Court said that the license could be revoked but of course, there was no media involved, no newspaper or radio broadcast station and there is no interstate commerce involved.

It was simply a case along the lines of the Williamson versus Lee Optical Company case.

So we submit that it can't have any controlling elements here.

We've dealt with it at length in both of our briefs.

And we -- I just want to emphasize it.

Justice Hugo L. Black: If this -- I want to ask you one question.

Mr. Carol J. Head: Yes, sir?

Justice Hugo L. Black: I've looked at your stipulation.

I see no -- is there any definition of price ads anywhere?

Mr. Carol J. Head: No sir, there is none.

The -- on page --

Justice Hugo L. Black: Does this mean that this man in Texas advertises to this radio in New Mexico that he would sell glasses at certain prices in Texas?

Mr. Carol J. Head: Yes, sir, that's my understanding.

This is all that's involved in this case.

Thank you.