From: Andre Bacard <abacard@well.sf.ca.us>
Date: Thu, 19 Jan 95 20:37:51 PST
To: cypherpunks@toad.com
Subject: Supreme Court & Anonymity
Message-ID: <199501200437.UAA20363@well.sf.ca.us>
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Attached is a Supreme Court decision that may bear directly upon
anonymous remailers and upon people who want to curtail anonymous
remailers.
 
This info came from Dave Banisar at EPIC <banisar@epic.org> via
Stanton McCandlish at EFF <mech@eff.org>. Thanks to Attorney
Banisar for supplying this information.
 
See you in the future,
Andre
- ------------------------------------------------------------
Andre Bacard              Bacard wrote "The Computer Privacy
Box 3009                  Handbook: A Practical Guide to E-Mail
Stanford, CA 94309        Encryption, Data Protection, and PGP
abacard@well.com          Privacy Software" [for novices/experts].
 
Introduction by Mitchell Kapor, Chairman, Electronic Frontier
Foundation and Founder of Lotus 1-2-3.
 
         Book Available February 1995. Write for Details
- ------------------------------------------------------------
 
 
                 TALLEY v. CALIFORNIA 
          SUPREME COURT OF THE UNITED STATES 
                     362 U.S. 60 
            January 13-14, 1960, Argued 
               March 7, 1960, Decided 
 
 
Certiorari to the Appellate Department of the Superior Court of
California, Los Angeles County. 
 
 
 172 Cal. App. 2d Supp. 797, 332 P. 2d 447, reversed. 
 
 A. L. Wirin and Hugh R. Manes argued the cause for petitioner. 
With them on the brief was Fred Okrand. 
 
Philip E. Grey argued the cause forrespondent.  With him on the
brief was Roger Arnebergh. 
 
Shad Polier, Will Maslow, Leo Pfeffer and Joseph B. Robison filed
a brief for the American Jewish Congress, as amicus curiae, urging
reversal.
 
Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan,
Whittaker, Stewart 
 
 MR. JUSTICE BLACK delivered the opinion of the Court. 
 
The question presented here is whether the provisions of a Los
Angeles City ordinance restricting the distribution of handbills
"abridge the freedom of speech and of the press secured against
state invasion by the Fourteenth Amendment of the Constitution."
 
n1 The ordinance, @ 28.06 of the Municipal Code of the City of Los
Angeles, provides: 
 
"No person shall distribute any hand-bill in any place under any
circumstances, which does not have printed on the cover, or the
face thereof, the name and address of the following: 
 "(a) The person who printed, wrote, compiled or manufactured the
same. 
 "(b) The person who caused the same to be distributed; provided,
however, that in the case of a fictitious person or club, in
addition to such fictitious name, the true names and addresses of
the owners, managers or agents of the person sponsoring said
hand-bill shall also appear thereon." 
 
   The petitioner was arrested and tried in a Los Angeles Municipal
Court for violating this ordinance.  It was stipulated that the
petitioner had distributed handbills in Los Angeles, and two of
them were presented in evidence.  Each had printed on it the
following: 
 
 
   National Consumers Mobilization, 
    Box 6533, 
    Los Angeles 55, Calif. 
    PLeasant 9-1576. 
 
 The handbills urged readers to help the organization carry on a
boycott against certain merchants and businessmen, whose names were
given, on the ground that, as one set of handbills said, they
carried products of "manufacturers who will not offer equal
employment opportunities to Negroes, Mexicans, and Orientals."
There also appeared a blank, which, if signed, would request
enrollment of the signer as a "member of National Consumers
Mobilization," and which was preceded by a statement that "I
believe that every man should have an equal opportunity for
employment no matter what his race, religion, or place of birth." 
 
The Municipal Court held that the information printed on the
handbills did not meet the requirements of the ordinance, found the
petitioner guilty as charged, and fined him $ 10.  The Appellate
Department of the Superior Court of the County of Los Angeles
affirmed the conviction, rejecting petitioner's contention, timely
made in both state courts, that the ordinance invaded his freedom
of speech and press in violation of the Fourteenth and First
Amendments to the Federal Constitution. n2 172 Cal. App. 2d Supp.
797, 332 P. 2d 447. Since this was the highest state court
available to petitioner, we granted certiorari to consider this
constitutional contention. 360 U.S. 928. 
 
In Lovell v. Griffin, 303 U.S. 444,   we held void on its face an
ordinance hat comprehensively forbade any distribution of
literature at any time or place in Griffin, Georgia, without a
license. Pamphlets and leaflets, it was pointed out, "have been
historic weapons in the defense of liberty" n3 and enforcement of
the Griffin ordinance "would restore the system of license and
censorship in its baldest form." Id., at 452. A year later we had
before us four ordinances each forbidding distribution of leaflets
- -- one in Irvington, New Jersey, one in Los Angeles, California,
one in Milwaukee, Wisconsin, and one in Worcester, Massachusetts. 
Schneider v. State, 308 U.S. 147. Efforts were made to distinguish
these four ordinances from the one held void in the Griffin case. 
The chief grounds urged for distinction were that the four
ordinances had been passed to prevent either frauds, disorder, or
littering, according to the records in these cases, and another
ground urged was that two of the ordinances applied only to certain
city areas.  This Court refused to uphold the four ordinances on
those grounds pointing out that there were other ways to accomplish
these legitimate aims without abridging freedom of speech and
press.  Frauds, street littering and disorderly conduct could be
denounced and punished as offenses, the Court said.  Several years
later we followed the Griffin and Schneider cases in striking down
a Dallas, Texas, ordinance which was applied to prohibit the
dissemination of information by the distribution of handbills.  We
said that although a city could punish any person for conduct on
the streets if he violates a valid law, "one who is rightfully on
a street . . . carries with him there as elsewhere the
constitutional right to express his views in an orderly fashion .
. . by handbills and literature as well as by the spoken word."
Jamison v. Texas, 318 U.S. 413, 416. 
 
The broad ordinance now before us, barring distribution of "any
hand-bill in any place under any circumstances," n4 falls precisely
under the ban of our prior cases unless this ordinance is saved by
the qualification that handbills can be distributed if they have
printed on them the names and addresses of the persons who
prepared, distributed  or sponsored them.  For, as in Griffin, the
ordinance here is not limited to handbills whose content is
"obscene or offensive to public morals or that advocates unlawful
conduct." Counsel has urged that this ordinance is aimed at
providing a way to identify those responsible for fraud, false
advertising and libel. Yet the ordinance is in no manner so
limited, nor have we been referred to any legislative history
indicating such a purpose. Therefore we do not pass on the validity
of an ordinance limited to prevent these or any other supposed
evils.  This ordinance simply bars all handbills under all
circumstances anywhere that do not have the names and addresses
printed on them in the place the ordinance requires. 
 
There can be no doubt that such an identification requirement would
tend to restrict freedom to distribute information and thereby
freedom of expression. "Liberty of circulating is as essential to
that freedom as liberty of publishing; indeed, without the
circulation, the publication would be of little value." Lovell v.
Griffin, 303 U.S., at 452. 
 
   Anonymous pamphlets, leaflets, brochures and even books have
played an important role in the progress of mankind.  Persecuted
groups and sects from time to time throughout history have been
able to criticize oppressive practices and laws either anonymously
or not at all.  The obnoxious press licensing law of England, which
was also enforced on the Colonies was due in part to the knowledge
that exposure of the names of printers, writers and distributors
would lessen the circulation of literature critical of the
government.  The old seditious libel cases in England show the
lengths  to which government had to go to find out who was
responsible for books that were obnoxious  to the rulers.  John
Lilburne was whipped, pilloried and fined for refusing to answer
questions designed to get evidence to convict him or someone else
for the secret distribution of books in England.  Two Puritan
Ministers, John Penry and John Udal, were sentenced to death on
charges that they were responsible for writing, printing or
publishing books. n6 Before the Revolutionary War colonial patriots
frequently had to conceal their authorship or distribution of
literature that easily could have brought down on them prosecutions
by English-controlled courts.  Along about that time the Letters of
Junius were written and the identity of their author isunknown to
this day. n7 Even the Federalist Papers, written in favor of the
adoption of our Constitution, were published under fictitious
names.  It is plain that anonymity has sometimes been assumed for
the most constructive purposes. 
 
   We have recently had occasion to hold in two cases that there
are times and circumstances when States may not compel members of
groups engaged in the dissemination of ideas to be publicly
identified. Bates v. Little Rock, 361 U.S. 516; N. A. A. C. P. v.
Alabama, 357 U.S. 449, 462. The reason for those holdings was that
identification and fear of reprisal might deter perfectly peaceful
discussions of public matters of importance.  This broad Los
Angeles ordinance is subject to the same infirmity.  We hold that
it, like the Griffin, Georgia, ordinance, is void on its face. 
 
   The judgment of the Appellate Department of the Superior Court
of the State of California is reversed and the cause is remanded to
it for further proceedings not inconsistent with this opinion. 
 
   It is so ordered. 
 
Footnotes 
 
n1 Schneider v. State, 308 U.S. 147, 154. Cf. Lovell v. Griffin,
303 U.S. 444, 450. 
 
n2 Petitioner also argues here that the ordinance both on its face
and as construed and applied "arbitrarily denies petitioner equal
protection of the laws in violation of the Due Process and Equal
Protection" Clauses of the Fourteenth Amendment.  This argument is
based on the fact that the ordinance applies to handbills only, and
does not include within its proscription books, magazines and
newspapers.  Our disposition of the case makes it unnecessary to
consider this contention. 
 
n3 The Court's entire sentence was: "These [pamphlets and leaflets]
indeed have been historic weapons in the defense of liberty, as the
pamphlets of Thomas Paine and others in our own history abundantly
attest." It has been noted that some of Thomas Paine's pamphlets
were signed with pseudonyms.  See Bleyer, Main Currents in the
History of American Journalism (1927), 90-93. Illustrations of
other anonymous and pseudonymous pamphlets and other writings used
to discuss important public questions can be found in this same
volume. 
 
n4 Section 28.00 of the Los Angeles Municipal Code defines
"handbill" as follows: "'HAND-BILL' shall mean any hand-bill,
dodger, commercial advertising circular, folder, booklet, letter,
card, pamphlet, sheet, poster, sticker, banner, notice or other
written, printed or painted matter calculated to attract attention
of the public." 
 
n5 Lovell v. Griffin, 303 U.S., at 451. 
 
n6 Penry was executed and Udal died as a result of his confinement.
 
1 Hallam, The Constitutional History of England (1855), 205-206,
232. 
 
n7 In one of the letters written May 28, 1770, the author asked the
following question about the tea tax imposed on this country, a
question which he could hardly have asked but for his anonymity: 
"What is it then, but an odious, unprofitable exertion of a
speculative right, and fixing a badge of slavery upon the
Americans, without service to their masters?" 2 Letters of Junius
(1821) 39. 
 
 
MR. JUSTICE HARLAN, concurring. 
 
   In judging the validity of municipal action affecting rights of
speech or association protected against invasion by the Fourteenth
Amendment, I do not believe that we can escape, as Mr. Justice
Roberts said in Schneider v. State, 308 U.S. 147, 161, "the
delicate and difficult   task" of weighing "the circumstances" and
appraising "the substantiality of the reasons advanced in support
of the regulation of the free enjoyment of" speech.  More recently
we have said that state action impinging on free speech and
association will not be sustained unless the governmental interest
asserted to support such impingement is compelling.  See N. A. A.
C. P. v. Alabama, 357 U.S. 449, 463, 464; Sweezy v. New Hampshire,
354 U.S. 234, 265 (concurring opinion); see also Bates v. Little
Rock, 361 U.S. 516. 
 
   Here the State says that this ordinance is aimed at the
prevention of "fraud, deceit, false advertising, negligent use of
words, obscenity, and libel," in that it will aid in the detection
of those responsible for spreading material of that character.  But
the ordinance is   not so limited, and I think it will not do for
the State simply to say that the circulation of all anonymous
handbills must be suppressed in order to identify the distributors
of those that may be of an obnoxious character.  In the absence of
a more substantial showing as to Los Angeles' actual experience
with the distribution  of obnoxious handbills, * such a  
generality is for me too remote to furnish a constitutionally
acceptable justification for the deterrent effect on free speech
which this all-embracing ordinance is likely to have. 
 
 
   On these grounds I concur in the judgment of the Court. 
 
Footnotes: 
 
 
   * On the oral argument the City Attorney stated: 
 
   "We were able to find out that prior to 1931 an effort was made
by the local Chamber of Commerce, urging the City Council to do
something about these handbills and advertising matters which were
false and misleading -- had no names of sponsors.  They were
particularly interested in the fictitious name. They said, 'Who are
these people that are distributing; who are advertising; doing
things of that sort?' The meager record that we were able to find
indicates that a request from the Council to the City Attorney as
to their legal opinion on this subject [sic].  The City Attorney
wrote back and formed the conclusion that distribution of
handbills, pamphlets, or other matters, without the name of the
fictitious firm or officers would be legal [sic].  Thereafter in
the early part of 1932 an ordinance was drafted, and submitted to
the City Council, and approved by them, which related to the
original subject -- unlawful for any person, firm or association to
distribute in the city of Los Angeles any advertisement or handbill
- -- or any other matter which does not have the names of the
sponsors of such literature." 
 
 
MR. JUSTICE CLARK, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE
WHITTAKER join, dissenting. 
 
   To me, Los Angeles' ordinance cannot be read as being void on
its face. Certainly a fair reading of it does not permit a
conclusion that it prohibits the distribution of handbills "of any
kind at any time, at any place, and in any manner," Lovell v.
Griffin, 303 U.S. 444, 451 (1938), as the Court seems to conclude. 
In Griffin, the ordinance completely prohibited the unlicensed
distribution of any handbills.  As I read it, the ordinance here
merely prohibits the distribution of a handbill which does not
carry the identification of the  name of the person who "printed,
wrote, compiled . . . manufactured [or] . . . caused" the
distribution of it.  There could well be a compelling reason for
such a requirement.  The Court implies as much when it observes
that Los Angeles has not "referred to any legislative history
indicating" that the ordinance was adopted for the purpose of
preventing "fraud, false advertising and libel." But even as to its
legislative background there is pertinent material which the Court
overlooks.  At oral argument, the City's chief law enforcement
officer stated that the ordinance was originally suggested in 1931
by the Los Angeles Chamber of Commerce in a complaint to the City
Council urging it to "do something about these handbills and
advertising matters which were false and misleading." Upon inquiry
by the Council, he said, the matter was referred to his office, and
the Council was advised that such an ordinance as the present one
would be valid.  He further stated that this ordinance, relating to
the original inquiry of the Chamber of Commerce, was thereafter
drafted and submitted to the Council.  It was adopted in 1932.  In
the face of this and the presumption of validity that the ordinance
enjoys, the Court nevertheless strikes it down, stating that it
"falls precisely under the ban of our prior cases." This cannot
follow, for in each of the three cases cited, the ordinances either
"forbade any distribution of literature . . . without a license,"
Lovell v. Griffin, supra, or forbade, without exception, any
distribution of handbills on the streets, Jamison   v. Texas, 318
U.S. 413 (1943);  or, as in Schneider v. State, 308 U.S. 147
(1939), which covered different ordinances in four cities, they
were either outright bans or prior restraints upon the distribution
of handbills.  I, therefore, cannot see how the Court can conclude
that the Los Angeles ordinance here "falls precisely" under any of
these cases.  On the contrary, to my mind, they neither control
this case nor are apposite to it.  In fact, in Schneider, depended
upon by the Court, it was held, through Mr. Justice Roberts, that,
"In every case . . . where legislative abridgment of the rights is
asserted, the courts should be astute to examine the effect of the
challenged legislation . . .   weigh the circumstances and . . .
appraise the substantiality of the reasons advanced . . . ." Id.,
at 161. The Court here, however, makes no appraisal of the
circumstances, or the substantiality of the claims of the
litigants, but strikes down the ordinance as being "void on its
face." I cannot be a party to using such a device as an escape from
the requirements of our cases, the latest of which was handed down
only last month.  Bates v. Little Rock, 361 U.S. 516.  n1 
 
   Therefore, before passing upon the validity of the ordinance, I
would weigh the interests of the public in its enforcement against
the claimed right of Talley.  The record is barren of any claim,
much less proof, that he will suffer any injury whatever by
identifying the handbill with his name.  Unlike N. A. A. C. P. v.
Alabama, 357 U.S. 449 (1958), which is relied upon, there is
neither allegation nor proof that Talley or any group sponsoring
him would suffer "economic reprisal, loss of employment, threat of
physical coercion [or] other manifestations of public hostility."
Id., at 462. Talley makes no showing whatever to support his
contention  that a restraint upon his freedom of speech will result
from the enforcement of the ordinance.  The existence of such a
restraint is necessary before we can strike the ordinance down. 
 
   But even if the State had this burden, which it does not, the
substantiality of Los Angeles' interest in the enforcement of the
ordinance sustains its validity.  Its chief law enforcement officer
says that the enforcement of the ordinance prevents "fraud, deceit,
false advertising, negligent use of words, obscenity, and libel,"
and, as we have said, that such was its purpose.  In the absence of
any showing to the contrary by Talley, this appears to me entirely
sufficient. 
 
   I stand second to none in supporting Talley's right of free
speech -- but not his freedom of anonymity.  The Constitution says
nothing about freedom of anonymous speech.  In fact, this Court has
approved laws requiring no less than Los Angeles' ordinance.  I
submit that they control this case and require its approval under
the attack made here.  First, Lewis Publishing Co. v. Morgan, 229
U.S. 288 (1913), upheld an Act of Congress requiring any newspaper
using the second-class mails to publish the names  of its editor,
publisher, owner, and stockholders.  39 U. S. C. @ 233. Second, in
the Federal Regulation of Lobbying Act, 2 U. S. C. @ 267, Congress
requires those engaged in lobbying to divulge their identities and
give "a modicum of information" to Congress. United States v.
Harriss, 347 U.S. 612, 625 (1954).  Third, the several States have
corrupt practices acts outlawing, inter alia, the distribution of
anonymous publications with reference to political candidates. n2
While these statutes are leveled at political campaign and election
practices, the underlying ground sustaining their validity applies
with equal force here. 
 
   No civil right has a greater claim to constitutional protection
or calls for more rigorous  safeguarding than voting rights.  In
this area the danger of coercion and reprisals -- economic and
otherwise -- is a matter of common knowledge.  Yet these statutes,
disallowing anonymity in promoting one's views in election
campaigns, have expressed the overwhelming public policy of the
Nation.  Nevertheless the Court is silent about this impressive
authority relevant to the disposition of this case. 
 
      All three of the types of statutes mentioned are designed to
prevent the same abuses -- libel, slander, false accusations, etc.
The fact that some of these statutes are aimed at elections,
lobbying, and the mails makes their restraint no more palatable,
nor the abuses they prevent less deleterious to the public
interest, than the present ordinance. 
 
   All that Los Angeles requires is that one who exercises his
right of free speech through writing or distributing handbills
identify himself just as does one who speaks from the platform. 
The ordinance makes for the responsibility in writing that is
present in public utterance.  When  and if the application of such
an ordinance in a given case encroaches on First Amendment
freedoms, then will be soon enough to strike  that application
down.  But no such restraint has been shown here.  After all, the
public has some rights against which the enforcement of freedom of
speech would be "harsh and arbitrary in itself." Kovacs v. Cooper,
336 U.S. 77, 88 (1949). We have upheld complete proscription of
uninvited door-to-door canvassing as an invasion of privacy. Breard
v. Alexandria, 341 U.S. 622 (1951). Is this less restrictive than
complete freedom of distribution -- regardless of content -- of a
signed handbill? And commercial handbills may be declared verboten,
Valentine v. Chrestensen, 316 U.S. 52 (1942), regardless of content
or identification.  Is Talley's anonymous handbill, designed to
destroy the business of a commercial establishment, passed out at
its very front door, and attacking its then lawful commercial
practices, more comportable with First Amendment freedoms?  I think
not.  Before we may expect international responsibility among
nations, might not it be well to require individual responsibility
at home?  Los Angeles' ordinance does no more. 
 
   Contrary to petitioner's contention, the ordinance as applied
does not arbitrarily deprive him of equal protection  of the law. 
He complains that handbills are singled out, while other printed
media -- books, magazines, and newspapers -- remain unrestrained. 
However, "the problem of legislative classification is a perennial
one, admitting of no doctrinaire definition.  Evils in the same
field may be of different dimensions and proportions, requiring
different remedies. . . .  Or the reform may take one step at a
time, addressing itself to the phase of the problem which seems
most acute to the legislative mind. . . .  The prohibition of the
Equal Protection Clause goes no further than the invidious
discrimination. [I] cannot say that that point has been reached
here." Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955). 
 
   I dissent. 
 
Footnotes 
 
n1 "When it is shown that state action threatens significantly to
impinge upon constitutionally protected freedom it becomes the duty
of this Court to determine whether the action bears a reasonable
relationship to the achievement of the governmental purpose
asserted as its justification." 361 U.S., at 525. 
 
n2 Thirty-six States have statutes prohibiting the anonymous
distribution of materials relating to elections.  E. g.: Kan. Gen.
Stat., 1949, @ 25-1714; Minn. Stat. Ann. @ 211.08; Page's Ohio Rev.
Code Ann. @ 3599.09; Purdon's Pa. Stat. Ann., Title 25, @ 3546. 
 
          ********************************************
David Banisar (Banisar@epic.org)       * 202-544-9240 (tel) 
Electronic Privacy Information Center * 202-547-5482 (fax) 
666 Pennsylvania Ave, SE, Suite 301  * ftp/gopher/wais cpsr.org 
Washington, DC 20003                * HTTP://epic.digicash.com/epic
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