HILL v. PRINTING INDUSTRIES OF GULF COAST
Argument of John W. Odam
Chief Justice Warren E. Burger: We'll hear arguments next in 74-456, Hill against Printing Industries.
Mr. John W. Odam: Mr. Chief Justice and may it please the Court.
I'm the Executive Assistant of the Attorney General of Texas and I'm here today representing appellants, Attorney General John Hill, Texas Secretary of State Mark White, and Mr. 0059 the District Attorney of Harris County Texas.
This appeal was taken from a judgment of three-judge United States District Court of the Southern District of Texas.
It was entered on August 20, 1974.
This was an action brought by several printers seeking to prevent disclosure of their names on certain political advertising that they were employed to prepare.
They challenge the constitutionality of a portion of Article 1410 (b) of the Texas Election Code which states, “All printed or published political advertising shall also have printed on it the name and address of the printer or publisher and the person paying for the advertising.”
Justice William H. Rehnquist: When was that law enacted in its present form?
Mr. John W. Odam: The law was enacted Your Honor in its present form on -- the amendment became effective on June 14, 1973.
Justice William H. Rehnquist: When was this lawsuit brought?
Mr. John W. Odam: The suit was filed on September 11th 1973 of which time local political races were being conducted in Houston, Texas.
Justice William H. Rehnquist: Had the secretary of state made any determination or have made any public announcement is to how he construed it or how he proposed to enforce it?
Mr. John W. Odam: No Your Honor, the Texas Secretary of State had not done so, nor had there been any prosecutions initiated or even attempted or even considered to that time as evidence and the record will demonstrate.
Justice Harry A. Blackmun: Haven't statutes of this kind been in effect in other states for many years?
Mr. John W. Odam: Yes Your Honor, there are approximately 33 to 36 states that have similar statutes to the one under consideration by the Court today.
The statute we have under consideration however is unique in that only a very small number of states, I believe three have statutes that require that the printer also be identified.
The statute is generally similar however to 18 U.S.C Section 612 as I will refer to later.
Justice Potter Stewart: As requiring a sponsor to be identified?
Mr. John W. Odam: That's correct Your Honor.
Justice Potter Stewart: But only three require the identification of the printer?
Mr. John W. Odam: Yes, Your Honor.
The three-judge court held --
Chief Justice Warren E. Burger: This side I suppose among other things enables the reader trace back the material to its source even if the names of the sponsors are either fictitious or meaningless for the readers that part of it?
Mr. John W. Odam: Yes Your Honor.
We would reach this point I believe in the compelling state interest, one of them being as Chief Justice points out.
The ability of the voter or the candidate or any interested citizen to be able to determine by looking at the piece of political advertising who printed it and then go to the printer whose address and name is indicated on the piece of political advertising and find out exactly who submitted it for printing and that is one of the very main reasons why the statute was enacted.
Chief Justice Warren E. Burger: Some of the statutes require the costs also to be indicated, do they not?
Mr. John W. Odam: Yes sir, yes.
If they do not in the Texas statute, but in other states, that's correct Your Honor.
Justice William J. Brennan: Some other -- I don't know what these statutes include them.
Are other types of statutes which require for example, an indication by an insignia whether or not the printing is done by a so called Union Printer if that's an organized printer?
Mr. John W. Odam: Yes Your Honor.
Justice William J. Brennan: Does Texas have such a statute?
Mr. John W. Odam: I don't believe so Your Honor.
Justice William J. Brennan: But then in any event, if there are, they're independent or separately from the --
Mr. John W. Odam: That's correct, that's correct.
The three-judge court held the foregoing language requiring the identification of the printer to be unconstitutional and that it infringed on appellees' First Amendment freedoms of speech, freedom of press and the right to assembly and said that there was no compelling state interest.
Also, the Court held that the statute was void in that the phrase person paying for the advertising is so vague that man of common intelligence would differ as to its meaning and application.
We present basically four fundamental court -- points to the Court today.
First, that the commercial printer's actions do not constitute speech that is protected by the First Amendment and even if it is protected, the First Amendment rights or freedom of speech and freedom to press do not guarantee to them the right to print political advertising anonymously.
Second, the portion of the statute in question does not substantially infringe upon the commercial printers and publisher's rights to association of privacy and to the extent that there maybe infringement which we denied that there is or were shown in the record in the court below, the state's interest in disclosure is sufficient to justify any infringement.
Third, assuming arguendo that the printers possess such rights and they are in fact infringed upon.
The purposes that are served by the reasonable disclosure requirements of Article 1410 (b), further the compelling state interest of protecting electoral process.
And fourth, the term person paying for the advertising is not unconstitutionally void because when you consider the statute in its entirety, any reasonable person exercising common sense can sufficiently understand and comply with the requirements.
Now, before expanding on these four basic points, I believe will benefit the Court if I very briefly comment more on the background of the statute being challenged.
From 1967 until 1973, a period of six years, Texas law required a political advertising as defined in Article 1410 (b), reflect the name and address of either the person paying for the advertising or the printer or publisher of the advertising.
I might note at this point for the benefit of Court that in the appendix which is supplied to the Court at page 65 is a full copy of the article as appears at the present time.
Significantly, not during the period of six years, not once during that time was challenge made to the term person paying for the advertising as being unconstitutionally vague.
In 1973, as a result of the experiences of the officers and the people of the State of Texas in which unethical and illegal conduct and political campaigns could not be effectively traced and thus not immediately prevented or prosecuted, the Texas Campaign Reporting and Disclosure Act was passed, designed to inform the public about the financing behind communications intended to influence their votes.
Among other reforms, the legislature changed the disclosure requirement from the disjunctive person paying or publisher or printer to the conjunctive, that being disclosure to the public of the name and address of the printer or publisher and the person paying for the advertising.
It's the change by our legislature of only just one word from “or to and” that brings as before you today.
As previously pointed out in response the question from Mr. Justice Rehnquist, the amendment as we see before us today was enacted on June 4, 1973 and a suit was filed on September 11, 1973.
There's no evidence presented to the court below that the candidates or political organizations had declined to use plaintiff appellees' commercial services nor that as a result with compliance with the statute that the printers had been harassed or had been intimated or had declined to undertake any commercial, political advertising for fear of reprisal or loss of other business.
No political candidates appeared before the court below as parties or as amici.
In fact, the only evidence before the Court was affidavits of individual printers swearing to their fears of a possibility of a reaction if they were to comply with the disclosure requirement.
No evidence was presented, the prosecutions have been initiated or even considered, nor evidence of how the act would be interpreted nor enforced by the appellant, Secretary of state, Mark White who is charged with the responsibility of enforcing the uniform application of the Texas election laws.
Parenthetically, a reading to the testimony of appellees' only to the live witnesses at the hearing of which a temporary restraining order was denied by Judge Singleton reveals that the testimony falls far short of establishing any likelihood of a chilling effect upon First Amendment rights.
To use Mr. Justice Marshall's phrase from this morning, the plaintiff's counsel supports their allegations out of the clear blue sky.
They are not supported by the evidences in the record in the case we have before us.
In sum, the plaintiffs have failed to meet their burden of proving to the court below or to this Court to declare the disclosure provision unconstitutional.
Our first point is that the Commercial Printer's actions do not constitute speech as protected by the First Amendment.
And even as such speech is protected, the First Amendment, freedoms of speech and freedom to press do not guarantee to them the right to print political advertising anonymously.
The First Amendment protects not the written or spoken word itself but the expression of ideas concerning social policy, political views and religious beliefs.
Speech or conduct however that expresses nothing of political or social importance is not subject to First Amendment protection.
As Judge Bue points out in his specially concurring opinion below.
these printers by their actions express nothing.
They do not argue that they are denied the right to print anonymously their own views in support of or in opposition to a particular candidate.
To the contrary, they seek the right to print anonymously that for which they have no feeling one way or the other.
Indeed, they seek to avoid expressing any type of conviction.
They seek constitutional protection to avoid expressing only their name.
Nor did the printer seek to distribute ideas.
They merely received orders from their clientèle and return the finished product to the person that has hired their services.
The appellees rely very heavily in the Tally versus California case to support their position.
We submit that the Tally decision does not in fact support them and is distinguishable from instant case in several very important aspects.
First, the Los Angeles ordinance requiring identification on all handbills were struck down because of over breadth as to time, as to place and as to circumstance and the lack of any relation to any ongoing governmental interest or responsibility.
The challenged language of Article 1410 applies only in very limited times, that being during a campaign and only to certain groups.
Those printing material for such campaign is for profit.
It clearly does not eliminate anonymous discussions of public matters of importance at all the times or even during an election campaign.
The purposes articulated by Mr. Justice Black from prohibiting an absolute ban on anonymous printing are far from applicable in the case at bar.
Now appellee printers have no such lofty purpose for seeking anonymity.
Rather, basic only to profit in private even if this were speech that were protected under the First Amendment, as Mr. Justice Clark pointed out in his dissenting opinion in Tally, the Constitution says nothing about freedom of anonymous speech nor there's freedom to press as illustrated in the Lewis Publishing Company case provide any such anonymity.
The Brandsberg decision also illustrates that freedom of press does not guarantee an absolute anonymity especially where substantial, compelling, public interests are shown and demonstrated.
As will be discussed in a later point here the state's interests are compelling and when weighed in the scales of justice against any possible infringement, may tilt in favor of the voting rights which our state so fervently attempts to protect.
The appellants contend that the case more properly fits within the rationale of the Insco case and the Scott case discussed in our brief dealing with the similar federal statute 18 U.S.C. Section 612 which requires identification a person responsible for distribution or publication of political advertising.
Our second point deals with the asserted right of associational privacy.
The portion of a statute in question does not substantially infringe upon the commercial printers and publishers’ rights to associational privacy.
The Printer's main reliance on this point is NAACP versus Alabama and the Bates versus City of Little Rock cases.
Now this relies as misplaced for at least two reasons.
First, the rationale in support to the right of associational privacy as they point out in their brief is to protect the right to associate, to advocate and promote political, social and economic actions.
The right to freely associate for the purpose of advancing ideas and erring grievances.
Ironically, the commercial printers do not seek to protect the rights to associate with the political candidate for any such reasons and has made the base of NAACP versus Alabama and Bates, but to the contrary they seek to conceal their identity for fear that someone might think that they do associate with their customers and thus damage their commercial enterprises.
Secondly and more importantly, the holding both the NAACP versus Alabama and in the Bates decision was that in each instance, the law in question imposing some burden on the First Amendment right was not shown to have a relevant or substantial correlation to the state interest sought to be furthered.
In the case at Bar, the substantial and compelling interests are shown by the state in a limited disclosure requirement of Article 1410.
The NAACP versus Alabama and the Tally case both recognized that disclosure maybe required when as here the state show good faith efforts to protect a fundamental interest.
Justice Thurgood Marshall: Why does the state need the name of the printer?
Mr. John W. Odam: Why does the state need to know the name of the printer?
We feel Your Honor that there are about five reasons why the state needs to know the name of the printer, all of which go to protect the voting rights of the public.
First of all, we'd say that they need to know the names of the printer in order to give a candidate or any other citizen a right to fairly reply to what the political advertising is, not as prohibited by the Miami Herald case, the access to the press.
Justice Thurgood Marshall: The man says “my name Joe Doe,” I put Joe Doe on the bottom, that doesn't mean I got a print of what you bring, what somebody else bring, does it?
Mr. John W. Odam: You mean when you --
Justice Thurgood Marshall: You put the name of the printer that's all I'm talking about, why do you need the name of the printer?
Mr. John W. Odam: Your Honor, if the candidate or any person has the name of the printer on the piece of political advertising, he can look to see who made such statement.
He can look at the piece of political advertising and say who made the statement, who calls this to be --
Justice Thurgood Marshall: You mean it's primitive make the statement?
Mr. John W. Odam: No, Your Honor, but the requirements of the statute are that the printer keep at his shop the name of a bent individual that came to him and submitted it for publication.
Justice Thurgood Marshall: Which his name is printed too?
Mr. John W. Odam: That's correct Your Honor but the name that is printed --
Justice Thurgood Marshall: So you get both, you come to them and say is this the name?
Mr. John W. Odam: No, Your Honor, the printer would publish; number one, the name of the person that's paying.
That name might not necessarily be the same name as the individual who submitted to him.
For example, the name that he might put on the piece of political advertising might be the citizens for the election of John Doe, the name submitted to him by the individual.
If you person out and the community wanted to see who submitted that on behalf of the citizen for John Doe, knowing who the printer is, you could go to the printer and he would have on the record who submitted it.
He would have the name of the individual.
Justice Thurgood Marshall: Be there as the name of the man who's name is on that.
That’s the only name he would have?
Mr. John W. Odam: No, Your Honor, under the statute, he's required to have the name of the individual which might not necessarily be the name of the person paying.
Justice Thurgood Marshall: Where is that in the statute?
Mr. John W. Odam: It's in the portion in Article 1410 (b) --
Justice Thurgood Marshall: What page?
Mr. John W. Odam: -- which is at page 66 of the appendix.
Justice Thurgood Marshall: Of the jurisdiction?
Mr. John W. Odam: Appendix to the jurisdictional statement at page 66.
Justice Thurgood Marshall: Is this it?
This is, now what page is?
Mr. John W. Odam: Page 66, Your Honor.
Justice Potter Stewart: First sentence of the --
Mr. John W. Odam: Yes Your Honor.
It would be starting about --
Justice Potter Stewart: And then the sign --
Mr. John W. Odam: Signed by the individual contract and therefore in showing his full address and if his agent name of the candidate political committee within this enterprise.
In other words, the name is printed on the piece of political advertising might be the political committee versus citizen for John Doe and if you want to find out who submitted it.
Justice Thurgood Marshall: But it then to prove to have objection of doing the Government's business for them.
What the statute said before you file a political advertising, you shall file with the secretary of state something.
That would be one thing but this is getting the printer to do it.
Mr. John W. Odam: Well, Your Honor, by having the printer do it, it allows the entire public during a political campaign to know who distributed it by knowing who submitted it to the printer.
Justice Thurgood Marshall: Did the printer require to show that anybody wants to see it?
Mr. John W. Odam: Yes, Your Honor.
Justice Thurgood Marshall: [Inaudible]
Justice Potter Stewart: You said there were five reasons and that's the first one, what are others?
Mr. John W. Odam: The second reason Your Honor is that it allows the voter to be better informed in casting his ballot.
Justice Potter Stewart: Now how in the world would the name of the printer do that anymore than the name of the secretary who typed the manuscript?
Mr. John W. Odam: Your Honor, if you know who the printer is, it allows by knowing who the printer is which ties very closely into the other point to know who submitted the material to be printed.
Justice Potter Stewart: Well that's the point.
Mr. John W. Odam: Well, the first point allows a candidate to reply to whatever it is.
My second point is to allow any individual voting in the campaign to know who submitted it.
In other words, under the first point, the candidate would know who submitted it and be able to reply more directly by knowing where the piece of political advertising came from.
The second point is that any candidate would be better informed by knowing exactly who submitted it to the printer.
They are more or less one the same but the first as protected candidate or any other citizen who might be discussed in the piece of political advertising.
The second is to allow the voter when looking at the piece of political advertising to be able to evaluate accordingly.
In other words --
Justice Potter Stewart: Not just by looking at, he has to go to the printer's office and get that?
Mr. John W. Odam: That's correct Your Honor, but absent that, he is not able to totally evaluate.
Justice Potter Stewart: Alright, so you say those are two points, but a little difficulty, what are the other three then?
Mr. John W. Odam: The third point Your Honor is that this disclosure will greatly deter one from attempting a falsely attributed smear as in the Dallas Grady case or in the Insco cases that are discussed in our brief.
The reason for this, I would submit is that if a candidate or political committee or business entity is required and knows there will state on a piece of political advertising who printed it, it would deter them from putting out a smear sheet in the first place because they know it can be tracked down or at least the first line of defense is allowed by going to the printer and finding out who put out.
Justice Thurgood Marshall: It would be track down if they don't put anything they want.
Justice Potter Stewart: Well it can't be, that's the point.
Mr. John W. Odam: That's correct and I'm saying that both names.
Justice Thurgood Marshall: This is automatic, you know.
Mr. John W. Odam: No, Your Honor but it allows at least to know who the printer is to go with to find in the first place, not necessarily where the --
Justice Thurgood Marshall: To know these printers and that will print anything for money.
Mr. John W. Odam: Well, the point Your Honor --
Justice Thurgood Marshall: Well the answer is you're not going after them, you'll go after them criminally, and that's your answer, isn't it?
Mr. John W. Odam: Well, other methods would be available.
We're not talking about going after the --
Justice Thurgood Marshall: [Inaudible]
Mr. John W. Odam: We're talking about going after the candidate or the political committee who intended to have it distributed in the first place.
Justice Thurgood Marshall: Alright.
Justice Potter Stewart: Alright.
Well, then your needs one, two, and three are that they allow anybody interested to go to the printer's office and find these names that are required to be kept there as matter of record by the printer.
Mr. John W. Odam: That's correct Your Honor.
Justice Potter Stewart: And whether it be a member of the public or a candidate or somebody who suspects dirty tricks, that’s really all are the same need in which I fully understand your point and then now what are your --
Mr. John W. Odam: The fourth point Your Honor is that it'll greatly assist the officials in checking the accuracy of expenditure required to be reported under other provisions of the Texas Campaign and Disclosure Act.
By these candidates in Texas must is in many states submit in Austin or at the District level of the county exactly what expenditures they made.
Well, there's no way to check that out.
They registered in Austin as to what they are and they say they made these expenditures or you have to take their word for it unless you have some other way of checking it out.
This is not only available to state official but to any public official whether it be a candidate or anyone else to determine exactly how much was expended and to verify whether or not that is correct.
And the fifth point Your Honor is that before the 1973 Amendment, the printer was required to retain the name of the contracting party.
That requirement was virtually meaningless because until this point you wouldn't know who the printer who is required to make the disclosure or retain the information in the first place.
Now, taking or assuming that that is a valid consideration, that is that the printer be required to keep the name of who submitted to him, it is meaningless unless you're able to find out who the printer is in the first place.
Justice Potter Stewart: So, that the name of the printer is important only because it is tied with the requirements of subsection (b) here on page 26 in that through the printer you can get the sponsors?
Mr. John W. Odam: That's correct Your Honor.
Justice Potter Stewart: And that if it's only important?
Justice William H. Rehnquist: I suppose to the -- under Texas libel and slander law, the printer might be liable in some circumstances for printing something that was grossly and maliciously false, might they not?
Mr. John W. Odam: That's correct Your Honor but our purpose in passing the statute is not to enhance necessarily our libel or slander laws.
We're concerned by informing the public at the time that political election is going on not to --
Justice William J. Brennan: Nobody but others could turn to the publication of libel or slander --
Mr. John W. Odam: Well, I believed Mr. Justice that simply because that there is --
Justice William J. Brennan: Well, no but the idea would be would the printer want to be cautious about whether he agrees to print with his name on it.
Mr. John W. Odam: I don't believe that is correct Your Honor because we're not only concerned about items would fall as far as being libelous or slanderous but we're talking about in a campaign where a slight difference.
Justice William J. Brennan: And I think you don't argue that to deter the publication of libelous and slanderous, the requirement of printing the printer's name on the publication that may assist them, you don't argue with that?
Mr. John W. Odam: No Your Honor.
Justice Potter Stewart: Very wisely.
Mr. John W. Odam: Your Honor these we submit are the five reasons which all go to the compelling state interest which we feel is indicated here.
In other words, if you have the freedom of speech to say that it exists or this speech is protected, to say that it is been infringed upon for all of these reasons which we have just discussed.
We in Texas are attempting to protect the public’s voting rights, to have a fair and honest and open election.
We care nothing about trying to help someone later on have a civil libel suit against someone but to help with the election at the time that is going on.
The states of the union are vested with a primary responsibility for the regulation of election processes within our boundaries for both federal and state congressional elections.
The importance of the responsibilities underlying Article 1, Section 4 of the United States Constitution that the states have the compelling interest in preserving the integrity and the orderliness of election process cannot be a matter of dispute.
The interest has its foundation in the right of all citizens, voters and candidates to choose their Governmental representatives in an orderly, fair, and democratic process.
Justice William J. Brennan: Incidentally, the Texas have on the statutes required comfortable identification of television or commercials, political commercials or radio --
Mr. John W. Odam: Yes, Your Honor but I think that the point on that is that the -- by identifying on a piece of political advertising exactly who the printer is, they are put in actual practical parity with the television station.
This particular statute would require --
Justice William J. Brennan: How about newspapers advertisements?
Do they -- what has to appear on that?
Mr. John W. Odam: Your Honor, as I recall there is an exemption as put out and this one exception to what Mr. Justice Rehnquist asked me earlier about newspapers that they would not be required since it obviously speaks from slays who is putting it out.
With the newspapers you can look at the newspaper and go to the source, you can look to the television set and go to the source.
Justice William J. Brennan: Well, whether it simply says committee for John Jones, that's all what the newspapers varies and carries, that doesn't tell who paid for the advertisement, does it?
Mr. John W. Odam: No Your Honor but the newspaper.
Justice William J. Brennan: The newspaper have to keep comparable information?
Mr. John W. Odam: Yes Your Honor.
What I mean by an exception is they're not required at the bottom of political advertising.
Justice William J. Brennan: No, but they have to keep the same kinds of records the printer has.
Mr. John W. Odam: That's correct Your Honor.
Justice William J. Brennan: And I gather that's supposed to monitor as you suggested earlier with compliance with whatever the expenditure laws of the state maybe and also it's possible to find out who in fact is behind the advertising.
Mr. John W. Odam: That's correct Your Honor and they're covered in Article 1410 (b) under publishers or printers referred to there.
I don't have time to go into our last point that deals with the board for vagueness but I'm sure they will cover that and perhaps I have a little bit of time left to respond the questions.
Thank you Your Honor.
Chief Justice Warren E. Burger: Mr. Birnberg?
Argument of Gerald M. Birnberg
Mr. Gerald M. Birnberg: Mr. Chief Justice and may it please the Court.
To respond generally to the statements which have been made and some of the questions which would be asked, I'd like to start with the overall concept of what is the purpose of Article 1410 (b).
Why do you need the name of the printer?
You need the name of the printer so the state of Texas tells us printed on the surface of political advertising so that individuals receiving that political advertising can go to the printer's place and receive a copy, a signed copy of the statement required also by Article 1410 although not in this particular challenged provision.
I want the Court to understand very distinctly that the printers have not in any way challenged the record keeping provisions of the act.
All that the printers have challenged and attacked is that provision of the Texas Election Code which requires the printers to print their name and address for public dissemination, for public dissemination on the printed material.
Now, with regard to what information the public and then get once they get to the printers, they get the information on the form provided by Article 1410.
That information requires that the printer keep a signed copy of the ad signed by the person contracting therefore, the person contracting therefore.
Now in answer to the question posed by the plaintiffs below, what does the phrase, the person paying for the advertising mean?
The defendants, the Secretary of State and the Attorney General of Texas answered in their brief below at page four of the brief that it was very easy to tell who is the person paying for the advertising.
The person paying for the advertising is the individual contracting therefore and such individual's full name and address must appear in so forth and so on.
So, in other words, the only information that you can get by going to the printer is the information which the state maintains must be on the face of the political advertising itself apart from the printer's name, namely the name of the person paying for the advertising.
Justice Thurgood Marshall: Why does the printer object to free advertising?
Mr. Gerald M. Birnberg: The printers object because as you'll note on the record in this case, Mr. Justice Marshall, their experience has been that when individuals see their name and address associated with particular political positions, particular political advertising that that has dire reprisal affects to them, that they have been exposed to various forms of -- as we've got in the record, physical reprisal, property, damage, economic reprisals, and various forms of harassment and so forth, when people identify the printers with supporting by at a very lease not refusing to undertake political advertising.
Justice Thurgood Marshall: 9 out of 10 of these briefs here, the printer always puts his name down and he loves to advertise?
Mr. Gerald M. Birnberg: Absolutely, Mr. Justice Marshall.
However, the chances of the members of this Court or any other Court reacting in a manner as some Texas voters do [Laughter] is not really substantial and indeed that is in fact the problem.
The identification of the printer during the heat of a political campaign particularly is calculated to cause tempers to fly, hard feelings to be felt and those sorts of things to take place.
Now, there's no evidence --
Justice Thurgood Marshall: Did that happen to any newspapers in Texas?
Mr. Gerald M. Birnberg: I assume that yes Your Honor.
I don't know that we have any evidence of that in the record and I wouldn't suggest to the Court any particular factual case but indeed for example, the named plaintiff, Mary Ann Coleman experienced in becoming publicly affiliated, publicly associated, publicly known as a republican in the self Texas areas.
She was beaten up and had various other forms of reprisals directed against her.
As a result of all of that, she undertook to formulate -- once Article 1410 (b) was announced, she undertook to formulate for her company a policy; “Our company will not undertake political advertising so long as we must publicly identify ourselves and publicly disclose that we support particular political candidates because it's dangerous, it causes all sorts of problems and we're not going to do it anymore.”
Now, that meant that with the advent of Article 1410 (b) --
Justice Thurgood Marshall: Now, we've got to cutout special rules affecting?
Mr. Gerald M. Birnberg: I'm sorry, I don't understand your point Mr. Justice.
Justice Thurgood Marshall: [Inaudible]
Mr. Gerald M. Birnberg: Well, in addition of course to republicans Mr. Justice Marshall.
No, of course not, but if you consider in even the more disunite political situations, the individual who prints for the Socialist Workers Party or the American-Nazi Party or the Communist Party or the John Burkes Society or any of the more dissident political groups that the more dissident the political expression, the less likely the printer is going to be to undertake that advertising in the first instance if he must associate himself openly and publicly.
Now, all we've asked is through this suit, aren't their means less restrictive on the printer's rights to associational privacy, aren't there ways to accomplish each and everyone of these admittedly, legitimate state interests without imposing upon the printer's rights to political privacy, associational privacy, at least to as severe and extent as Article 1410 (b) does.
Justice William J. Brennan: Meaning some code [Inaudible]
Mr. Gerald M. Birnberg: For precisely, for example that Mr. Justice Brennan, we suggested the coded --
Justice William J. Brennan: But what they have to do then, they'd be required to register or take it with some --
Mr. Gerald M. Birnberg: They could be required, they could choose to register and receive --
Justice William J. Brennan: Get number or a button or something?
Mr. Gerald M. Birnberg: Right and if they chose not to register, not to get that number, they could in that circumstance print the name and address.
Another thing on the political advertising, but that would be no more restrictive or no more of a licensing or a registration statute than requiring printers in the printing business to get employer identification numbers for internal revenue purposes.
So, just get a number and use a coded bug so that there is not this widespread public dissemination of the identity of the printer doing political work for particular individual.
Chief Justice Warren E. Burger: Does Texas have a Freedom of Information Act?
Mr. Gerald M. Birnberg: Texas does have a public record statute and --
Chief Justice Warren E. Burger: One might went off the street and say to the Secretary of the State, we want to know what printer has code number 2341?
Mr. Gerald M. Birnberg: Certainly, and there are two alternatives that I think --
Chief Justice Warren E. Burger: Why is that any less intrusive?
Mr. Gerald M. Birnberg: It's less intrusive for two reasons Mr. Chief Justice.
First of all, Texas in designing such a coded bug system could very well put in some sort of safeguards, I'm thinking in terms of the Bank Secrecy Act case for example where such information would not be available except on the showing of it being in furtherance of or necessary to achieve one of these legitimate state interests which has been expressed.
Second reason is, because in that situation you would have only the person who was legitimately interested in ascertaining that information for whatever purpose or reason to track down a scurrilous piece of campaign literature or what have you instead of every single person who receives any piece of political advertising.
Chief Justice Warren E. Burger: Do you concede that it's a proper state interest to track down as you put it a piece of scurrilous campaign literature?
Mr. Gerald M. Birnberg: Oh, I certainly think that that's legitimate state interest.
Now, I think the state can pursue that with legitimate state interest only with imbalance which do not transgress First Amendment Rights of the printers or anyone else for that matter.
Justice William J. Brennan: Your argument is fully on behalf of the printer --
Mr. Gerald M. Birnberg: Yes.
Justice William J. Brennan: Do you suggest if there's anything wrong about the Texas requirement that there appear on the advertisement on itself, the name of the person who paid for it?
Mr. Gerald M. Birnberg: Except for the vagueness argument Mr. Justice Brennan, we're only assorting the rights of the printers in this particular case.
Now, we are not suggesting necessarily that leaving the name of the person paying for the advertising is constitutional.
Justice William J. Brennan: Does anyone here representing originally party to this?
Mr. Gerald M. Birnberg: There is no such party in this particular lawsuit Mr. Justice Brennan.
This is the lawsuit that is used not before the Court in this particular case, but another less restrictive thing that Texas could do it seems to us would be to pass a law, making it the illegal, making it a crime to put out falsely attributed campaign literature or scurrilous campaign literature or libelous campaign literature or otherwise to prohibit that.
Justice Thurgood Marshall: Are there such laws?
Mr. Gerald M. Birnberg: No Mr. Justice Marshall, Texas does not, Texas did have a criminal libel law until January 1, 1974 at which time it was effectively repealed and at this time Texas has no law making it a crime to put out a piece of so called campaign dirty tricks in any form or fashion.
Justice William H. Rehnquist: How would one know where it came from, if you simply got it and it was falsely attributed unless there was some requirement like this?
Mr. Gerald M. Birnberg: Well, there are at least two things that I can think of Mr. Justice Rehnquist.
One of them is some form of a less restrictive printer identification requirement such as the coded bug systems, such as requiring that the printers and again I come back to the Bank Secrecy Act Case present copies of their political advertising to the Secretary of State who has a copy of each piece of political advertising there in his office, in the central repository sort of scheme.
Justice William J. Brennan: Whether if it showing who the printer was?
Mr. Gerald M. Birnberg: Certainly what the record showing who the printer was and --
Justice William J. Brennan: Without coded bug or anything else on the material itself?
Mr. Gerald M. Birnberg: Without any coded bug or anything else on the material itself.
Another thing is presumably if the piece of campaign material is false, libelous or otherwise a subject of controversy in the context of a political campaign and if the printer knows that he has been identified, appropriately the state officials then presumably that printer may well come forward and say this was done by me.
I was the person who printed it and I was paid for -- it was paid for by John Doe or whoever else happened to be the person paying for it.
But notice Mr. Justice Rehnquist --
Justice William H. Rehnquist: [Voice Overlap] subject to the same reprisals that you say your client would be?
Mr. Gerald M. Birnberg: I'm sorry I didn't understand.
Justice William H. Rehnquist: If he comes forward voluntarily under the pressure of this alternative system that you urge won't it be subject to the same sort of reprisals that you say your client is under the existing law?
Mr. Gerald M. Birnberg: Probably that one printer and that one case would be but all of the other printers who had undertaken to do political advertising for various individuals would not be exposed to the great extent, to the devastating extent that we have under the present law.
All the printers are desirous of doing is isolating the infringement on their constitutional rights if you will, is trying to tone down the devastating effect of this 1973 Amendment.
I might point out or through --
Justice Harry A. Blackmun: Well, I'm a little disturbed by your approach on less restrictiveness.
Is this all was a constitutional measure that something might have been done a little less restrictively?
Mr. Gerald M. Birnberg: Mr. Justice Blackmun, whenever the legislature has sought to achieve a legitimate state interest in a manner which infringes upon the exercise of First Amendment Rights then the legislature may do that only in the way which is the least restrictive on those rights only in a way which is absolutely necessary in the furtherance of the achievement of that legitimate state interest.
Justice Harry A. Blackmun: Of course any imaginative lawyer can always come up with something that's a little less restrictive, would he not?
Mr. Gerald M. Birnberg: I'm not sure that's necessarily the case because obviously Texas had a lot of imaginative lawyers working on this particular case and I do not suggest --
Justice Harry A. Blackmun: Isn't that the impossible to achieve standard when you take this position?
Mr. Gerald M. Birnberg: Is it possible to achieve what?
Justice Harry A. Blackmun: Impossible to achieve.
Mr. Gerald M. Birnberg: Oh I certainly don't think so Mr. Justice Blackmun.
It seems to me that if the present --
Chief Justice Warren E. Burger: There's never a better way to do it?
Mr. Gerald M. Birnberg: There may always be a better way to do it.
In each case the Court must consider and balance whether or not the rights which have been infringed upon have been so substantially infringed upon that some less restrictive means must be adopted to accomplish the legitimate state interest.
That's what we're urging so easily the State of Texas could have done and could do in this very case.
Justice Potter Stewart: The only thing I guess is that if there were no other possible way of furthering this state end you would have a much weaker case than you now have because there are many other possible ways?
Mr. Gerald M. Birnberg: Certainly, I would go further than that Mr. Justice Stewart and say if there were no other reasonable way to do it then certainly our position would not be as strong as it is.
But there are several other reasonable ways to accomplish each of these legitimate state interests without burdening the printer's rights to political element.
Justice Potter Stewart: Would you argue with the much less intrusive upon your --
Mr. Gerald M. Birnberg: Absolutely Mr. Justice Stewart.
Chief Justice Warren E. Burger: How would you like to address your friend's argument that the act of printing is if I understood it correctly, the act of printing these documents is conduct since it doesn’t express any ideas of any kind of printer?
Mr. Gerald M. Birnberg: Yes, well yes Mr. Chief Justice, there are two ways.
First of all, I will address the Court to the very lengthy and I think scholarly dissertation Judge Singleton on that precise issue with all of his citations in the opinion for the court below on which the three judges unanimously declared the law unconstitutional.
Justice William J. Brennan: I gather a judge view didn't think with First Amendment Rights in printers as much as First Amendment Rights of those who were responsible for having the --
Mr. Gerald M. Birnberg: That's certainly true and the result of course Mr. Justice Brennan is still the same that in Mr. Justice Bue's opinion, this law is an unconstitutional infringement on --
Justice William J. Brennan: Yes, but he didn't think the one with First Amendment Rights of the printer?
Mr. Gerald M. Birnberg: Of the printers, he certainly did not.
We disagree with that view.
Understand also that there are two First Amendment Rights that we're talking about here.
One of them is the right to print anonymously and I think that is the issue to which my colleague is addressing himself and suggesting that the printers have no such right that they are merely commercial conduits and we point out that as a practical matter and as an historical matter, if the printer, if the person who operates the printing press does not have First Amendment protection co-existent with that enjoyed by the author that the whole purpose and scheme of the First Amendment is frustrated.
Secondly, however and the issue is --
Justice William H. Rehnquist: It really is nonetheless the right to print someone else's views anonymously that you're claiming?
Mr. Gerald M. Birnberg: We are claiming the -- yes Mr. Justice Rehnquist, the right to undertake to print what we choose to print and not to choose what we don’t want to print.
That is a statement of our name and address.
That is the printer's name and address.
That raises of course a Tornillo type issue where the state has told the printers you must print your name and address on political advertising.
I would point out to the Court by the way --
Justice William H. Rehnquist: Well what about the newspaper, what about the federal statute that requires a newspaper, every newspaper, they print the name of the publisher and so forth.
Mr. Gerald M. Birnberg: Mr. Justice Rehnquist, that's only to the extent that the newspaper desires and chooses to avail itself of second class mailing rights and --
Justice William H. Rehnquist: No, but Justice Holmes long ago said the government has the right to run a mail service but it doesn't have a right to run in violation of the First Amendment.
I wouldn't think that’s any distinction?
Mr. Gerald M. Birnberg: I believe the case that upheld that law is Lewis Publishing Company versus Morgan 1913 case and that's precisely the problem is that Mr. Justice Holme's position was not accepted in that case.
That the Court said in that case that Congress has under Article 1, Section 8, plenary power to control the postal service and therefore anyone choosing or desiring to avail himself of lower postal rights, lower postal rights maybe required to forgo some extent First Amendment Rights.
Now, I think --
Chief Justice Warren E. Burger: Doesn't that been as followed up by the obscenity cases on the mailing problem?
Mr. Gerald M. Birnberg: I certainly think it has Mr. Chief Justice --
Chief Justice Warren E. Burger: Then your point vanishes?
Mr. Gerald M. Birnberg: Well, whether the point vanishes, the point is that there's no constitutional, there is no judicial pronouncement of the efficacy of that law that exists and is viable today.
Lamont versus Postmaster also seems to suggested that that 1913 ruling is no longer viable law.
I would ask the Court, I would direct the Court's attention to the fact that political advertising in Texas is very broadly construed.
It’s saying anything that it's any form of expression, anything published in a newspaper magazine or journal or any pamphlet, handbill or other printed matter or anything broadcast over a radio or television station or displayed on a billboard in favor of or in opposition to any candidate for public office or office of a political party or in favor of or in opposition to the success of any public office holder or in favor of or in opposition to any proposition submitted to the vote of the people whether it's been previously submitted, whether it’s to be submitted sometime in the future, whether it's been propose to be submitted.
So, virtually any discussion about political matters which is reduced to printed or published form must carry a printer identification requirement.
I would suggest to the Court that Mr. Hamilton -- Alexander Hamilton would have to have had the name and address of his printer printed on the federalist papers.
I would suggest to the Court that John Jay would similarly have had to.
I would therefore urge the Court to affirm the ruling below of the three-judge-district court.
Chief Justice Warren E. Burger: Thank you Mr. Birnberg.
You have three minutes left Mr. Odam.
Rebuttal of John W. Odam
Mr. John W. Odam: Thank you Your Honor.
Mr. Chief Justice may it please the Court.
Justice William J. Brennan: What about the alternative methods.
Mr. John W. Odam: Your Honor as far as alternative methods are concerned, I believe that --
Justice William J. Brennan: Would the state's interest all piled over and be as well served by coded --
Mr. John W. Odam: Your Honor I would appear to hear what Mr. Birnberg's suggestion would be if the State of Texas will require printers to come and identify themselves before they undertake any type of registration.
I believe that you have more serious constitutional problems as far as prior registration if a coded bug system were to come into play.
Another alternative that they suggest is some type of central repository where every type of political advertising from the entire State of Texas a copy of such a sense somewhere that legislature certainly has a right in considering alternative methods if they want to have such central repository are allowed to have to the voter which we are most concerned with or compelling state interest to protect the voter's rights, let the voter know when he looks at a piece of political advertising who printed it.
Now, that's what we're concerned about.
The alternative means therefore to answer your question would not accompany this purpose.
Chief Justice Warren E. Burger: I suspect that they have this coding system that we'd be confronted with an argument that this was in affect a disguised licensing of printers?
Mr. John W. Odam: I'm sure that that would be the case Your Honor.
It would -- again the bug system, the coded system would not avail to the voters to know and as the Chief Justice points out would come into the licensing -- prior licensing before they could even go into effect.
There are only two closing points I would make Your Honor would be number one, that the evidence before this Court such as opposing counsel has referred to was not for the record that the three-judge-court, the references made to the problems that the lady have with regard to her feelings about supporting a republican candidate.
That was at the temporary restraining order but was not a part of the record that the TRO or excuse me at the three-judge-court hearing.
Again, this record is void of law to support the position as well as the facts as developed in this record when considering the record as a whole and therefore we're respectfully pray that this Court reverse the decision of the three-judge-court below.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.