Printing Industries of Gulf Coast v. Hill

• Citation: 382 F. Supp. 801
• Decision Date: 23 December 1974
• Docket Number: Civ. A. No. 73-H-1261.
• Parties: PRINTING INDUSTRIES OF the GULF COAST et al. v. Honorable John HILL, Attorney General of the State of Texas, et al.
• Court: U.S. District Court — Southern District of Texas

382 F. Supp. 801

PRINTING INDUSTRIES OF the GULF COAST et al. v. Honorable John HILL, Attorney General of the State of Texas, et al.

Civ. A. No. 73-H-1261.

United States District Court, S. D. Texas, Houston Division.

August 20, 1974.

Stay Granted October 11, 1974.

Probable Jurisdiction Noted December 23, 1974.

COPYRIGHT MATERIAL OMITTED

Gerald M. Birnberg, Bellaire, Tex., for plaintiffs.

Penny J. Brown, Asst. Atty. Gen., Houston, Tex., Elizabeth Levatino, Austin, Tex., for defendants.

Before GEE, Circuit Judge, and SINGLETON and BUE, District Judges.

Stay Granted October 11, 1974. See 95 S.Ct. 19.

Probable Jurisdiction Noted December 23, 1974. See 95 S.Ct. 677.

SINGLETON, District Judge.

In 1973 the 63rd Legislature of the State of Texas amended Article 14.10(b) of the Texas Election Code V.A.T.S., to provide as follows: "Any 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." Sanctions for the violation of the law are a fine of not less than $100 nor more than $5,000 or imprisonment of not less than one year nor more than five years or both fine and imprisonment.

Plaintiffs are a trade association consisting exclusively of persons engaged in the printing industry and three named individual printers. They have brought this suit pursuant to 42 U.S.C.A. § 1983, alleging that the quoted language is unconstitutional because it interferes with their right to political and associational privacy and anonymity and because it abridges the freedom of the press. Further, they allege that the statute is unconstitutionally vague and imprecise. The plaintiffs have alleged that they fear and have reason to fear intimidation, harassment, and reprisals if they are required to associate openly and publicly with certain political candidates or positions as required by the statute; they fear that persons seeing plaintiffs' names on political advertising will mistakenly believe that the plaintiffs endorse those candidates or positions whose printing they undertake, and in this way the statute has a chilling effect on the exercise of first amendment rights. Further, they allege that they were unable to determine the requirements of the statute in that the terms "person paying for the advertising" and "publisher" are not defined.

Jurisdiction is founded on 28 U.S.C.A. §§ 1331 and 1343, 2201 and 2202. The case is before this three-judge district court by virtue of 28 U.S.C.A. §§ 2281 and 2284.

STANDING

The defendants have questioned the standing of the plaintiffs to rely on the rights guaranteed by the first amendment. The argument is that because there is no standing to assert the rights of third parties except in very narrow circumstances, the printers have no standing because the rights they seek to assert are those of third parties, the politicians and voters. The printers, it is said, are only "commercial conduits" who are injured, if at all, in the pocket book — their personal political speech and association rights remain untouched by the law. This court believes that the printers are personally injured by the law.

The first amendment rights to freedom of speech and press exist not only because the authors of the Bill of Rights wished to humor the eccentricities of the man on the soap box but because they wished to secure forever the means of making the United States a free market place of ideas. The human voice and the human pen are vital to this goal but no more vital than the physical printing press itself and the persons who operate it. All of these rights exist because of the same goal. Who can say that in achieving the goal any one element is more important or that because one element has commerical aspects it lacks standing to protect itself. All of these rights are so closely bound together that the goal they were created to achieve will fail should any one be curtailed. To say that the right of the printer physically to print the written word can be distinguished from the right of the author to have his words printed because the printer has no interest in the ideas he prints (his interest being in receiving a fee for his printing) is to ignore not only the clear language of the first amendment but the scheme behind that amendment. Restrictions on the printer do impede the author, but the printer's rights are not derived from the author's rights. The printer's rights are related to those rights — both are derived from the same idea behind the first amendment. The idea behind the first amendment would be severely threatened were we to limit the assertion of first amendment rights to the author-printer who both writes and prints his ideas. Protection of speech and authorship is firmly grounded on a national policy of protecting the rights of both the individual and the whole people. Printing and publication may not rest on as strong an individual support as speech and authorship, but because without question printing and publication advance the rights of the people to know and understand they are no less deserving of protection than speech and authorship. In this sense the rights of the printer and publisher are no more derivative than the rights of the speaker and author.¹

During the 1930's the Supreme Court embarked upon a course which defined the first amendment guarantees and emphasized their importance. In all of the long line of cases there was one theme: "the belief of the framers of the constitution that exercise of the rights lies at the foundation of free government by free men." Schneider v. Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). Never, in these cases, are the rights in terms of personal rights purely for the sake of individual freedom, rather the rights are defined in terms of personal right for the sake of "free government by free men." This theme was not meant to diminish the obviously strong belief in individual freedom but to emphasize that individual freedom in the first amendment free-speech area is not cherished purely for its own sake but is cherished for the sake of all the people. It was seen as absolutely essential to the democracy which the founding fathers established. The language of these earlier cases makes quite clear that the Supreme Court which first articulated the first amendment protections we take for granted today never considered a "commercial conduit" argument. In Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1930), the Court cut down a Minnesota state statute which provided that a person or corporation which "regularly or customarily" produced, published, circulated, had in possession, sold, or gave away a "malicious, scandalous and defamatory newspaper, magazine or other periodical," could be found guilty of publishing, etc., a nuisance and have the nuisance enjoined. The court said:

In attempted justification of the statute, it is said that it deals not with publication per se, but with the "business" of publishing defamation . . . . Characterizing the publication as a business, and the business as a nuisance, does not permit invasion of the constitutional immunity against restraint.

283 U.S. at 720, 51 S.Ct. at 632. It is true that in Near the publication existed only to put forth ideas of one group so that the publisher's case can be distinguished from the case of the independent contractor which we have here, yet the Supreme Court recognized that the first amendment gives to the press something which makes it more than a mere business.

In Grosjean v. American Press Company, 297 U.S. 233, 56 S.Ct. 444, 30 L. Ed. 660 (1935) there was an attempt to impose a license tax of 2% of the gross receipts of advertising of newspapers having a circulation of 20,000 or more per week. This was an attempt at regulating only the commerical aspects of a newspaper's operations, yet the Court did not hesitate to strike it down. Historically, taxation of the circulation of newspapers was a tool of repression, not because it took money from the pockets of the publishers but because it was a method of limiting "the circulation of information to which the public is entitled in virtue of the constitutional guarantees." 297 U.S. at 250, 56 S.Ct. at 449. There was never any question of the standing of the plaintiffs in Grosjean to bring the suit which so directly involved them and to assert the first amendment as their protection.

What is more important, the Court stated the purpose of the first amendment:

The grant of immunity here invoked was to preserve an untrammeled press as a vital source of public information . . . the suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.

297 U.S at 250, 56 S.Ct. at 449. It is important to realize this when treating the instant case because in our zeal to secure individual first amendment rights it often becomes hard to see that the ideal of free men governed by free men is just as dependent upon the vehicle of free speech — a free press. Not just the freedom to write one's own tract, print it in one's basement, and distribute it on the street corner is at stake but the freedom to go to a printer in the business of printing what comes over the counter, pay him, and have printed one's tract is at stake. The purpose of the first amendment was to protect the person who only operates the press as much as the author-printer, not so much because otherwise the commerical printer might lose money but because without the printer many an author could not disseminate his ideas. Unless the mere printer has a right which is greater than that of the ordinary businessman, not only his self-interest will be harmed but the purpose of the first amendment will be defeated. It is in the public interest to keep printers in business and to keep speakers and writers speaking and writing. The public interest has historically been...