Adams v. Hinkle, 34132

Decision Date27 February 1958
Docket NumberNo. 34132,34132
Citation322 P.2d 844,51 Wn.2d 763
CourtWashington Supreme Court
PartiesJay B. ADAMS and L. M. Riches, d/b/a Riches and Adams, Publishers' Distributors, and M. V. Mowan, d/b/a The High School Pharmacy, Respondents, v. Van R. HINKLE, as Supervisor of the Division of Children and Youth Services of the Department of Institutions of the State of Washington, Appellant.

John J. O'Connell Atty. Gen., Stephen C. Way, Olympia, for appellant.

Kahin, Carmody & Horswill, Burton C. Waldo, Seattle, for respondents.

Donald McL. Davidson, Martin P. Detels, Jr., Seattle, amici curiae.

FORSTER, Justice.

Honorable Van R. Hinkle, supervisor of the division of children and youth services of the department of institutions, appeals from a permanent in junction in a declaratory judgment action (RCW chapter 7.24) enjoining him from enforcing the comic book act (Laws of 1955, chapter 282, p. 1231) because of its constitutional invalidity.

Respondents, who are retail and wholesale distributors of magazines, including comic books, and who were plaintiffs below, alleged in their complaint that the comic book act is void because it violates the first amendment to the Federal Constitution, made applicable to the states by the fourteenth amendment, and constitutes a prior restraint upon the freedom of the press, which rights are, likewise, guaranteed by Art. I, § 5, of the state constitution, and, because of its vagueness, denies procedural due process required by the fourteenth amendment. The court below, while holding the act void because it violated the equal protection clause of the fourteenth amendment of the Federal Constitution and Art. I, § 12, of the state constitution, declined to pass upon the other constitutional questions raised.

That the regulation of comic books is a matter of grave public concern is exemplified by the many private and legislative studies, reference to which may be found in the materials collected in the margin. 1

While the act is void on the two grounds specified by the court below, the importance of the problem compels us to deal with all of the constitutional issues raised. 2

The act may be summarized as follows:

Section 1 declares that crime comic books are a factor in juvenile delinquency, and the act is, therefore, in the public interest.

Section 2 declares that the legislation is an exercise of the police power and enjoins a liberal construction of its provisions.

Section 3 defines wholesale, retail, dealer, supervisor and comic book, the latter definition alone being important for present purposes, and is as follows:

"Comic book' means any book, magazine or pamphlet, sold or distributed for profit, a major part of which consists of drawings depicting or telling a story of a real or fanciful event or series of events, with a substantial number of said drawings setting forth the spoken words of the characters with pointers, or brackets, or enclosures, or by such other means as will plainly indicate the character speaking such words: Provided, however, That no comic section of any regularly published daily or weekly newspaper shall be deemed to be a 'comic book' for the purposes of this act;'

Section 4 makes sale of comic books or possession thereof with intent to sell without a prior license a crime, and imposes an increasing scale of penalties for subsequent violation.

Section 5 creates a rule of evidence that all comic books will appeal to minors, and that such presumption cannot be overcome by statements that they were not intended for minors.

Section 6 prescribes the fees for licenses.

Sections 7 and 9, separately dealt with hereafter, denounce comic book sales as a crime, and prescribe penalties.

Section 8 prohibits tie-in sales.

Section 10 authorizes the refusal of a license, or the revocation of one already issued, for the violation of RCW 9.68.010, which prohibits the sale of obscene literature.

Administrative hearings are sanctioned upon complaints addressed to license applications by section 11.

Section 12 deals with the refusal to license or the revocation of a license because of an interest in the business of a wholesaler whose license has been suspended or revoked.

Section 13 requires dealers to furnish the supervisor with three copies of every comic book before distribution or sale.

Section 14 deals with administrative authority.

Until the adoption of the fourteenth amendment 3 the first ten amendments did not apply to states, but it is now settled by repeated decisions of the United States supreme court, collected in the margin, 4 that the fourteenth amendment made the first amendment prohibition against statutes abridging the freedom of speech or freedom of the press applicable to states. 5 We have so recognized it. State ex rel. Holcomb v. Armstrong, 39 Wash.2d 860, 239 P.2d 545; State ex rel. Bolling v. Superior Court, 16 Wash.2d 373, 133 P.2d 803. 6

Appellant urges that we must presume the statute constitutional and relies upon Gruen v. State Tax Commission, 35 Wash.2d 1, 211 P.2d 651; State ex rel. Campbell v. Case, 182 Wash. 334, 47 P.2d 24; and Poolman v. Langdon, 94 Wash. 448, 162 P.578. While this is true in other fields of constitutional law, it is not applicable in civil rights cases, that is, cases arising under the first amendment to the Federal Constitution and Art. I, § 5, of the state constitution.

The sweep of the first amendment to the Federal Constitution precludes the state from enacting any law abridging the freedom of speech of press. In Bridges v. State of California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192, the United States supreme court declared:

'* * * For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech, or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.'

Consequently, there is no presumption of constitutionality of statutes abridging those rights. While the constitutional prohibition against such statutes is absolute, the courts have found exceptions: (1) Military preparations in time of war; (2) obscenity; and (3) incitements to acts of violence. Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed 1357.

In Burstyn, Inc., v. Wilson, 343 U.S. 495, 504, 72 S.Ct. 777, 781, 96 L.Ed. 1098, the court further said:

'* * * In the light of the First Amendment's history and of the Near decision, the State has a heavy burden to demonstrate that the limitation challenged here presents such an exceptional case.'

It is stated in 16 C.J.S. Constitutional Law § 99, pp. 388, 442:

'On the other hand, where rights, privileges, and immunities of the citizen are involved, the usual strong presumption in favor of constitutionality does not apply. This is true where the right of freedom of speech, thought, or association, or of the press, or of religion, or of assembly, is involved, so that when these questions are raised, the burden is on the state of justifying its application in each instance. In determining the validity of a statute which appears on its face to limit the exercise of a right specifically protected by the constitution, the presumption of validity is narrowed in its scope; and where a statute departs from the traditional precepts and practices of American lawmaking, the intendment which the judiciary customarily entertains in favor of the constitutionality of a statute loses much of its force.' 7

In Busey v. District of Columbia, 78 U.S.App.D.C. 189, 138 F.2d 592, the constitutionality of an act of Congress, relating to the District of Columbia regulating the street sale of all merchandise except newspapers without prior license, was challenged. Earlier that act was sustained, Busey v. District of Columbia, 75 U.S.App.D.C. 352, 129 F.2d 24, but Circuit Judge Rutledge, afterwards Mr. Justice Rutledge of the United States supreme court, dissented. The decision was reversed by the United States supreme court, 319 U.S. 579, 63 S.Ct. 1277, 87 L.Ed. 1598. Upon remand the court of appeals said:

'Freedoms of speech, press, and religion are entitled to a preferred constitutional position because they are 'of the very essence of a scheme of ordered liberty.' They are essential not only to the persons or groups directly concerned but to the entire community. Our whole political and social system depends upon them. Any interference with them is not only an abuse but an obstacle to the correction of other abuses. Because they are essential, the guarantees of free speech, press, and religion in the First Amendment, though not all constitutional guarantees, are within the 'liberty' which is protected by the due process clause of the Fourteenth Amendment. And in the recent flag salute case the Supreme Court said: 'The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds.' The Supreme Court has specifically suggested that these freedomes may be entitled to special treatment in respect to the proof of facts on which the constitutionality of legislation depends. In sustaining a purely commercial regulation, the Court said: 'The existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis * * *. There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as...

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