American Civil Liberties U. of So. Cal. v. Board of Education

• Decision Date: 26 February 1963
• Citation: 59 Cal.2d 203,28 Cal.Rptr. 700,379 P.2d 4
• Court: California Supreme Court
• Parties: , 379 P.2d 4 AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA et al., Petitioners, v. BOARD OF EDUCATION OF the CITY OF LOS ANGELES, Respondent. L. A. 26948.

Page 700

28 Cal.Rptr. 700

59 Cal.2d 203, 379 P.2d 4

AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA et al., Petitioners, v. BOARD OF EDUCATION OF the CITY OF LOS ANGELES, Respondent.

L. A. 26948.

Supreme Court of California, In Bank.

Feb. 26, 1963.

A. L. Wirin and Fred Okrand, Los Angeles, for petitioners.

Harold W. Kennedy, County Counsel, and Ronald L. Schneider, Deputy County Counsel, for respondent.

PETERS, Justice.

Petitioners, a nonprofit corporation and its Executive Director, seek mandate to compel the respondent Board of Education to grant its application for a permit to use John Burroughs Junior High School Auditorium for a series of public bimonthly meetings on the subject of 'The Bill of Rights.' Respondent denied that application upon the sole ground that petitioners refused to file a statement of information as required by respondent's rule 1316. The sole question presented by this proceeding is whether respondent has the legal right to make compliance with that rule a prerequisite to an otherwise lawful use of the school premises. ¹

The use for which the school premises is requested is admittedly a proper use, within the Civic Center Act (ch. 4, div. 12, Ed.Code), which makes school property available for any public use which does not interfere with the school program. Petitioners' request does not entail any such interference. Petitioners' refusal to comply with respondent's rule 1316 was based solely on principle, in that they believe the requirements thereof are unconstitutional. The parties hereto are the same as the parties in American Civil Liberties Union v. Board of Education, 55 Cal.2d 167, 10 Cal.Rptr. 647, 359 P.2d 45, filed January 24, 1961, in which this court reiterated the principle (previously stated in Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 545-546, 171 P.2d 885) that while '(t)he state is under no duty to make school buildings available for public meetings * * * (i)f it elects to do so * * * it cannot arbitrarily prevent any member of the public from holding such meetings * * * (n)or * * * make the privilege of holding them dependant on conditions that would deprive any members of the public of their constitutional rights.' In that decision we also held that sections 16564 and 16565 of the Education Code (a portion of the Civic Center Act) were unconstitutional insofar as they required an applicant for use of school property to file a statement that the property would not be used 'to further any program or movement the purpose of which is to accomplish the overthrow of the Government of the United States by force, violence or other unlawful means,' and that the organization applying does not advocate such and is not a communist-action or communist-front organization. ² The tenor of that opinion was that the statutory requirement was aimed not at the use to which the school property would be put, but was intended to bar certain organizations from use because of their political beliefs; in other words, that the statute ignored the fact that such an organization might desire to use the school property for perfectly legitimate purposes.

When that decision became final, the respondent board investigated the necessity and propriety of filling (by local rule) the gap left by this court's holding that section 16565 was unconstitutional. It noted that other sections of the Civic Center Act, which remained in effect, required it to take such steps as might be required to prevent improper use of school property, while still other sections granted it the power to make local rules and regulations for such purpose. It considered several proposed regulations, and finally adopted the rule here under scrutiny.

Thus the basic question is whether respondent's rule 1316 is in conflict with any provision of the state or federal Constitutions. The respective contentions of the parties in this regard are as follows:

1. Petitioners urge and respondent denies that the statement of information required by rule 1316 is an unconstitutional abridgement of petitioners' rights of free speech and assembly for the same reasons that this court held that the provisions of Education Code section 16565 are invalid;

2. Petitioners urge and respondent denies that such requirement subverts the presumption of innocence and inverts the burden of proof;

3. Petitioners urge and respondent denies that rule 1316 violates due process of law because it is too broad, and is arbitrary, unreasonable, and vague;

4. Petitioners urge and respondent denies that respondent was without power to enact rule 1316 because of state preemption of the field.

We find no merit in petitioners' contentions.

Respondent's rule 1316 does not establish on unconstitutional abridgement of the rights of free speech and assembly:

Since petitioners in this portion of their argument rely principally upon our previous decision in American Civil Liberties Union v. Board of Education, supra, 55 Cal.2d 167, 10 Cal.Rptr. 647, 359 P.2d 45, the basic distinction between the statute there involved and rule 1316 should be noted. Section 16565 of the Education Code provided that an applicant could be denied the use of school property solely because of that applicant's political beliefs, and not because of the use to which it intended to put the premises. Respondent's rule 1316, on the other hand, requires no information regarding the applicant itself, but is restricted to a negative statement of the purpose for which it intends to use the building that is, a statement that the property will not knowingly be used for the commission of any illegal act. The Education Code section was directed exclusively to communist activities, or activities ordinarily associated with communist organizations, whereas respondent's rule refers in general to 'any act which is prohibited by law.' ³ These distinctions not only provide the basis for determining that the latter does not abridge the rights of free speech and assembly, but are also germane to the other legal issues here presented. Thus, the claim that the rule subverts our former opinion is unsound.

In an attempt to sustain the claim that the requirements of the rule violate the constitutional guarantees of freedom of speech and assembly, petitioners next claim that the statement which an applicant must submit constitutes prior censorship and a prior restraint on free speech, and that such is not justified by any clear and present danger. In a very limited sense, the requirement that one state in advance that he will not knowingly commit an illegal act constitutes a prior restraint, but it is not censorship (unless self-censorship be included in the definition). The kind of censorship usually attacked is where the statute requires that spoken or written words picture or performance, be submitted, before publication, to an authority which then makes a determination of whether the words or performance may be made public. Here there is no such requirement. The matter to be presented to the public is not disclosed in advance, and no authority is given the board to predetermine whether that matter is or is not to be presented. The rule here under discussion requires only that the applicant censor itself; that is, that it submit in advance a statement that it does not knowingly intend to commit any criminal act on the school property. Therefore, the requirement of respondent's rule cannot be deemed to be the type of prior restraint ordinarily referred to as an unconstitutional limitation upon freedom of speech or assembly.

Moreover, not all prior restraints are, ipso facto, unconstitutional. In Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403, the United States Supreme Court recently held that a Chicago ordinance requiring an exhibitor to submit all motion picture films to a governmental censor before receiving a permit for public display was a valid prior restraint which did not violate the constitutional guarantee of free speech. There, commencing at page 47, 81 S.Ct. at page 393, the court said: 'It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 715-716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint 'is stated too broadly, if every such restraint is deemed to be prohibited * * *. (T)he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.' These included, the Chief Justice found, utterances creating 'a hindrance' to the Government's war effort, and 'actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.' In addition, the Court said that 'the primary requirements of decency may be enforce against obscene publications' and the 'security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. '' On page 49, 81 S.Ct. on page 394, the court added, " The phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test.' * * *

'Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. The State's sole remedy, it says, is the invocation of criminal process under the Illinois pornography statute * * * and then only after a transgression. But this position, as we have seen, is founded upon the claim of absolute privilege against prior restraint under the First Amendment a claim without sanction in our cases.' ⁴

Thus, where the subject matter of the intended speech or assembly is such that it may properly be...