American Civil Liberties Union of Southern Cal. v. Board of Ed. of City of Los Angeles

• Decision Date: 24 January 1961
• Court: California Supreme Court
• Parties: , 359 P.2d 45, 94 A.L.R.2d 1259 AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA (a Corporation), et al., Petitioners, v. BOARD OF EDUCATION OF CITY OF LOS ANGELES, Respondent. L. A. 25788.

Page 647

10 Cal.Rptr. 647

55 Cal.2d 167, 359 P.2d 45, 94 A.L.R.2d 1259

AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA (a Corporation), et al., Petitioners, v. BOARD OF EDUCATION OF CITY OF LOS ANGELES, Respondent.

L. A. 25788.

Supreme Court of California, In Bank.

Jan. 24, 1961.

Rehearing Denied Feb. 21, 1961.

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

Robert L. Bostick, Fred F. Cooper, Oakland, Albert M. Bendich, Marshall W. Krause, San Francisco, and Rudolph Pacht, Los Angeles, amici curiae on behalf of petitioners.

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

DOOLING, Justice.

Petitioners seek a writ of mandate to compel the Board of Education of the City of Los Angeles to grant their application for the use of the John Burroughs Junior High School Auditorium in which to hold a series of monthly public meetings on the general theme of 'The Bill of Rights in 1960.' Their application was denied by respondent board because petitioners refused to furnish the 'Statement of Information' as required by section 16565 of the Education Code, which implements section 16564 of the same Code (formerly §§ 19440 and 19441).

The pertinent portion of section 16564 reads: 'Any use, by any individual, society, group, or organization for the commission of any act intended to further any program or movement the purpose of which is to accomplish the overthrow of the Government of the United States or of the State by force, violence, or other unlawful means shall not be permitted or suffered.' Implementing section 16565, as here material, provides:

'No governing board of a school district shall grant the use of any school property to any person or organization for any use in violation of Section 16564.

'For the purpose of determination by such governing board whether or not any individual, society, group or organization applying for the use of such school property intends to violate Section 16564, the governing board shall require the making and delivery to such governing board, by such applicant of a written statement of information in the following form:

'Statement of Information

'The undersigned states that, to the best of his knowledge, the school property for use of which application is hereby made will not be used for the commission of any act intended 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;

'That ........, the organization on whose behalf he is making application for use of school property, does not, to the best of his knowledge, advocate the overthrow of the Government of the United States or of the State of California by force, violence, or other unlawful means, and that, to the best of his knowledge, it is not a communist-action organization or communist-front organization required by law to be registered with the Attorney General of the United States. This statement is made under the penalties of perjury.

(Signature) 'The school board may require the furnishing of such additional information as it deems necessary to make the determination that the use of school property for which application is made would not violate Section 16564 of the Education Code.'

Petitioners refused to furnish the prescribed statement primarily on the ground that such test oath requirement abridged both the state and federal constitutional guarantees of freedom of speech and assembly. U.S.Const. Amendments I and XIV; Cal.Const. art. I, §§ 9, 10.

The sections of the Education Code here under attack were obviously adopted in an attempt to meet the constitutional objections to the former section 19432 of the Education Code, which we held unconstitutional in Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 171 P.2d 885, 888. That section prohibited in express terms the use of the 'civic center' in any school building by 'any group, society, or organization which has as its object or one of its objects the overthrow or the advocacy of the overthrow of the present form of government of the United States or of the State by force, violence, or other unlawful means.' We held in Danskin (28 Cal.2d pages 545-546, 171 P.2d at page 891) 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 dependent on conditions that would deprive any members of the public of their constitutional rights. A state is without power to impose an unconstitutional requirement as a condition for granting a privilege even though the privilege is the use of state property.'

We further quoted from De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278: 'The holding of meetings for peaceable political actions cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge. We are not called upon to review the findings of the state court as to the objectives of the Communist Party. Notwithstanding those objectives, the defendant still enjoyed his personal right of free speech and to take part in a peaceable assembly having a lawful purpose, although called by that party.' 28 Cal.2d pages 552-553, 171 P.2d at page 895.

We concluded: 'When one searches deeper for the reason that motivates the prohibition of such meetings, there is no escaping the conclusion that the Legislature denies access to a forum in a school building to 'subversive elements,' not because it believes that their public-meetings would create a clear and present danger to the community, but because it believes the privilege of free assembly in a school building should be denied to those whose convictions and affiliations it does not tolerate. What it does not tolerate it seeks to censor. * * * Since the state cannot compel 'subversive elements' directly to renounce their convictions and affiliations, it cannot make such a renunciation a condition of receiving the privilege of free assembly in a school building. * * * If it is unconstitutional for the state to prohibit certain persons or groups classified as 'subversive elements' from exercising their rights of free speech and assembly at places where others are allowed to speak and assemble it is a fortiori unconstitutional to require proof from any persons or groups that they are not subversive elements.' 28 Cal.2d pages 545, 546, 548, 171 P.2d at page 891. Specifically with reference to De Jonge, quoted supra, we added: 'The De Jonge case cannot be distinguished on the ground that it involved a criminal statute, while the statute in the present case sought to suppress free speech and free assembly by requiring an administrative board to deny permits for meetings of those whose objects and affiliations are disapproved. In each case the state sought to suppress free speech and assembly and it is immaterial that it sought to accomplish that objective in the one case by threat of punishment and in the other by censorship.' 28 Cal.2d page 553, 171 P.2d at page 896.

Having thus clearly held that the statute then before us was unconstitutional for denying to 'subversive groups' the right to use school 'civic centers' for assemblies and the exercise of the right to speak freely therein, without regard to the lawful or unlawful purpose or character of such meetings, we added:

'The state must be on the alert for any clear and present danger to the community, sensitive to the warning signals, the ambiance in which a forum is planned, the atmosphere that envelops it. It cannot look with equanimity upon those whose words or actions have already left in their wake a trail of violence.

'Always it must distinguish, however, between speech, no matter how unorthodox, that remains on a theoretical plane, and speech, no matter how skillfully intoned, that creates a clear and present danger to the community.' 28 Cal.2d pages 553-554, 171 P.2d at page 896.

The Legislature in enacting sections 16564 and 16565 was attempting, without doubt, to bring its regulations within the constitutionally permitted area, thus adverted to by us in Danskin, by limiting its regulation to the permissible field of prevention of speech and assembly in school buildings which would constitute 'a clear and present danger to the community.' It is argued by respondent that it has done so. On the other hand, petitioners point to the language of section 16564: 'Any use * * * for the commission of any act intended to further any program or movement the purpose of which is to accomplish the overthrow of the Government * * * by force, violence, or other unlawful means * * *' (emphasis added); and argue that the language is so broad in its scope as to include acts which would not create the clear and present danger which permits the preventive or punitive action of the state, and would prohibit speech or other conduct 'that remains on a theoretical plane' as well. We accept the argument of respondent in this particular that the...