Com. v. Wadzinski

• Decision Date: 22 September 1980
• Citation: 492 Pa. 35,422 A.2d 124
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Frank J. WADZINSKI, Appellant.
• Court: Pennsylvania Supreme Court

Page 124

422 A.2d 124

492 Pa. 35

COMMONWEALTH of Pennsylvania, Appellee, v. Frank J. WADZINSKI, Appellant.

Supreme Court of Pennsylvania.

Argued April 14, 1980.

Decided Sept. 22, 1980.

James F. Geddes, Jr., Wilkes Barre, for appellant.

Chester Muroski, Dist. Atty., Michael C. Kostelaba, Asst. Dist. Atty., Wilkes Barre, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

KAUFFMAN, Justice.

The issue presented in this appeal is whether Section 1614 of the Pennsylvania Election Code is unconstitutional because it imposes criminal sanctions upon a candidate for public office who publishes a political advertisement referring to an opponent without first complying with prescribed notice requirements. ¹ For the reasons set forth below, we conclude that Section 1614 unreasonably restricts protected speech in contravention of the First and Fourteenth Amendments to the United States Constitution. ²

I

Appellant, Frank J. Wadzinski, a candidate for mayor of the City of Nanticoke in 1973, made a paid political radio broadcast on the day before the November 6, 1973 election. In the broadcast, appellant referred to his opponent, the incumbent mayor: (1) noting that a charge of perjury was pending against him, (2) criticizing his performance as mayor, and (3) attacking his indebtedness to "special interests."

Following the election, appellant was convicted of violating Section 1614 for failing to give the requisite advance notice of the contents of his broadcast. ³ Appellant thereafter filed a petition for a writ of certiorari in the Court of Common Pleas of Luzerne County challenging, inter alia, the constitutionality of Section 1614 on First and Fourteenth Amendment grounds. That court dismissed the writ, holding that the constitutional question was not cognizable on appeal by writ of certiorari and, in the alternative, that appellant's constitutional claim was without merit. The Superior Court affirmed the dismissal on the procedural ground without reaching the merits of appellant's constitutional challenge. Commonwealth v. Wadzinski, 239 Pa.Super. 76, 361 A.2d 790 (1976). This Court granted allocatur and reversed and remanded for a decision on the merits. Commonwealth v. Wadzinski, 485 Pa. 247, 401 A.2d 1129 (1978). ⁴ On remand, the Superior Court upheld the constitutionality of Section 1614 and affirmed appellant's conviction. Commonwealth v. Wadzinski, --- Pa.Super. ---, 403 A.2d 91 (1979).

Because this appeal presents an important and unsettled question of constitutional law, we again granted allocatur. ⁵

II

The Pennsylvania Election Code was enacted to regulate the electoral process so that it is both orderly and fair. The purpose of Section 1614 is to prevent misleading, false, or scandalous campaign charges, published immediately prior to an election, from going unrebutted and thus improperly swaying the result of the election. ⁶ Accordingly, the statute places no direct restraint on the content of election-eve speech, but, instead, gives each candidate an opportunity to respond to widely publicized commentary published by his opponent just before the balloting begins.

Section 1614 thus requires a candidate who intends to publish a political advertisement referring to an opponent during the statutorily defined final days of a campaign to provide the opponent with "reasonable notice" of the contents of the advertisement. Reasonable notice is defined as notice that is sufficient to permit the opponent to publish a reply advertisement contemporaneously with or at the same approximate time as the original. As construed by the Superior Court in a previous constitutional challenge, the notice requirements of Section 1614 are imposed only on original, and not on reply, advertisements that make reference to an opponent. Commonwealth v. Suplee, 255 Pa.Super. 351, 387 A.2d 85 (1978). ⁷

In 1973, a violation of Section 1614 was a summary offense punishable by a fine or, in default thereof, imprisonment. ⁸ Proof of the offense is complete upon a showing that the defendant, without providing the requisite advance notice, published in the designated media a political advertisement referring to an opponent. Thus, the truth or falsity of the statements made is wholly irrelevant to the applicability of criminal sanctions. In addition to the post-publication criminal penalties expressly provided for by Section 1614, further penalties may be imposed by provisions of the Pennsylvania Election Code. A willful violator of Section 1614 may forever be disqualified from holding public office, 25 P.S. § 3551, and may be disabled from voting for a period of four years from the date of conviction. 25 P.S. § 3553. See Pa.Const. art. 8, § 9.

III

In essence, appellant contends that these combined sanctions will deter political expression protected by the First and Fourteenth Amendments. ⁹ In response, the Commonwealth argues that Section 1614 is a content neutral law that operates to encourage, not to deter, the free flow of political information. Accordingly, the Commonwealth contends that the statute is likely to promote First Amendment freedoms. It is further argued that any incidental deterrent effect on protected speech occasioned by Section 1614 is fully justified by the state's overriding interest in enabling voters to make a reasoned choice at the polls. ¹⁰ We disagree with the Commonwealth and conclude that Section 1614 sweeps far too broadly and, in so doing, impermissibly intrudes upon constitutionally protected speech.

IV

The constitutional limits upon state regulation of campaign speech have yet to be fully defined. See generally L. Tribe, American Constitutional Law, § 13-26 at 798-99 (1978); Developments in the Law, Elections, 88 Harv.L.Rev. 1111, 1272-1298 (1975). Nevertheless, the basic propositions that govern a First Amendment challenge to such laws are well settled. We begin with the general premise that the First Amendment's guarantee of freedom of expression has long been among our most fundamental and carefully guarded rights. "Whatever the explanation for the ascendancy of the First Amendment protection, courts have remained particularly sensitive to government regulation that tends to impinge on expressive freedom." Alderman v. Philadelphia Housing Authority, 496 F.2d 164, 168 (3d Cir. 1974), cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974). There is practically universal agreement that free discussion of candidates for political office is essential to the functioning of a democratic society. Mills v. Alabama, 384 U.S. 214, 218-19, 86 S.Ct. 1434, 1436-37, 16 L.Ed.2d 484 (1966). Such discussions are afforded "the broadest protection" in order to "assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976). See also Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957). This broad grant of protection reflects our "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open." New York Times Co. v. Sullivan, supra, 376 U.S. at 270, 84 S.Ct. at 720 (1964). Accordingly, the First Amendment guarantee of free speech "has its fullest and most urgent application to the conduct of campaigns for public office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971).

These principles have been forcefully applied by the United States Supreme Court in Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966), and Miami Herald Publishing Company v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). Both cases dealt with legislation regulating political speech. In Mills, the state, purportedly in order to prevent the publication of irrefutable, last-minute charges in election campaigns, imposed criminal sanctions for the publication on election day of editorials urging voters to support a particular candidate or position. The statutory ban against such editorials applied without regard to the truth or falsity of the editorial advocacy. The Court, sustaining a First Amendment challenge, held that "no test of reasonableness" could save such a state law from invalidation. 384 U.S. at 220, 86 S.Ct. at 1437. In Tornillo, the state granted a political candidate a statutory right to equal space to answer criticism and attacks on his record made by a newspaper, and made it a misdemeanor for the newspaper to fail to comply. Under this "right to reply" statute, a newspaper could freely criticize any candidate as long as it undertook the burden of publishing the candidate's reply. The Court found the statute constitutionally infirm because of the possibility that it might chill vigorous political debate, 418 U.S. at 256-57, 94 S.Ct. at 2838-39, and because it permitted governmental intrusion into the editorial function. Id. at 258, 94 S.Ct. at 2839. Both of these cases, then, stand for the proposition that outright legislative restrictions substantially limiting election debate or advocacy violate the First Amendment.

It follows from the principles and precedents enunciated above that any state law regulating campaign speech requires, in the face of a properly presented First Amendment challenge, the most exacting judicial scrutiny. This is not to say, however, that any attempt to regulate this subject matter is automatically unconstitutional. First, it is clear that not all speech uttered during the course of a political campaign is constitutionally protected. "(T)he use of the known lie as a tool (for political ends) is at once at odds with the premises of a democratic government and with the orderly manner in which economic, social or political change is to be effected." Garrison v. Louisiana, 379 U.S. 64, 85, 85 S.Ct. 209, 221, 13 L.Ed.2d 125 (1964). Calcula...