Ghafari v. Municipal Court

Decision Date14 December 1978
Citation87 Cal.App.3d 255,150 Cal.Rptr. 813
Parties, 2 A.L.R.4th 1230 Farzad GHAFARI, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent; The PEOPLE of the State of California, Real Party in Interest and Respondent. Homayoon MAJD, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent; The PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 41690, Civ. 41695.
CourtCalifornia Court of Appeals Court of Appeals

Jeffrey G. Lewis, Oakland, Donald J. Stang, Larson, Stang & Weinberg, San Francisco, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Don Jacobson, Deputy Attys. Gen., San Francisco, for real party in interest and respondent.

FEINBERG, Associate Justice.

In these consolidated appeals, we are confronted with a single issue is Penal Code section 650a constitutional?

The facts, for purposes of these appeals, are not in dispute.

Appellants are Iranian nationals, students in this country and members of the Iranian Students' Association (I.S.A.). It is an understatement to say that appellants and the I.S.A. are vigorously opposed to the present government in Iran. One of the views held by the I.S.A. is that the regime in Iran is maintained in power by reason of the support afforded by the United States government. Thus, members of the I.S.A. demonstrate, picket, hand out leaflets and so on, not only to show their own disaffection from their government, but to make known publicly their reasons for their views. I.S.A. hopes to affect public opinion, gain public sympathy, and thereby affect our present foreign policy vis-a-vis Iran.

Appellants have also alleged, and for purposes of this appeal, it is not denied that, for good reason, they are fearful that if their identity became known as I.S.A. members and demonstrators, retaliatory measures of an unpleasant nature may be taken against them here and against their relatives in Iran by agents of the Iranian government.

On August 24, 1976, on the sidewalk in front of the Iranian Consulate in San Francisco, appellant Ghafari was engaged in peaceful picketing, with other pickets, when he was arrested for violating Penal Code section 650a 1 on the ground that he was picketing in disguise by placing a leaflet between his glasses and face for the purpose of concealing his identity.

On October 1, 1976, appellant Majd was arrested for the same reason, in the same area, under similar circumstances.

Appellants have alleged and, again, for purposes of this appeal, it is not controverted that, had they known they could not protect their anonymity while demonstrating, they would not have demonstrated nor will they participate in demonstrations in the future if they cannot do so without disclosure of their identity.

The cases come before us having followed the same route. Each appellant demurred in municipal court to the charge of having violated section 650a. Each demurrer was overruled. Each appellant then petitioned the superior court for a writ of prohibition directed to the municipal court. The superior court issued an alternative writ in each case and then after hearing, denied each petition; these appeals followed.

Penal Code section 650a is unconstitutional on its face under the United States Constitution because it is overbroad and vague and it denies equal protection of the laws.

The statute.

Section 650a provides:

It is a misdemeanor for any person, either alone or in company with others, to appear on any street or highway, or in other public places or any place open to view by the general public, with his face partially or completely concealed by means of a mask or other regalia or paraphernalia, with intent thereby to conceal his identity. This section does not prohibit the wearing of such means of concealment in good faith for the purposes of amusement, entertainment or in compliance with any public health order.

The statute was originally enacted in 1923 (Stats.1923, ch. 153, §§ 1, 2, p. 316) in substantially its present form. It was not placed in a code, and it was never construed in a reported decision. It was reenacted in its present form and was codified as section 650a in 1953 (Stats.1953, ch. 32, § 18, p. 641). One reported decision has discussed the statute, but the constitutionality of it was not in issue and was not considered. (In re Martin (1963) 221 Cal.App.2d 14, 34 Cal.Rptr. 299; see also People v. Horner (1955) 137 Cal.App.2d 615, 621, fn. 1, 290 P.2d 902 (mentioning enactment of the section).) The issues raised herein are of first impression.

Section 650a is overbroad.

The rights of freedom of speech, peaceful assembly and free association 2 are unquestionably protected activities which "lie at the foundation of a government based upon the consent of an informed citizenry . . . ." (Bates v. Little Rock (1960) 361 U.S. 516, 522-523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480; Britt v. Superior Court (1978) 20 Cal.3d 844, 852, 143 Cal.Rptr. 695, 574 P.2d 766.) Appellants contend that the statute is overbroad on its face because it flatly prohibits anonymity under circumstances where these protected activities may be involved and because the restriction is not required by a compelling state interest nor is it implemented in the least restrictive manner possible. We agree.

The proposition that, under certain circumstances, anonymity is essential to the exercise of constitutional rights is not a novel one. "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." (N. A. A. C. P. v. Alabama (1958) 357 U.S. 449, 462, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488; Britt v. Superior Court, supra, 20 Cal.3d at p. 853, 143 Cal.Rptr. 695, 574 P.2d 766.) 3 "Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws Either anonymously or not at all." (Emphasis added.) (Talley v. California (1960) 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559.)

The People argue that section 650a in no way restricts the legitimate exercise of First Amendment freedoms. The assertion is patently in error. The fact that the state, through this statute, takes no direct action to restrict the exercise of constitutional rights is not dispositive, for in the area of First Amendment liberties, "abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action." (N. A. A. C. P. v. Alabama, supra, 357 U.S. at p. 461, 78 S.Ct. at 1171; Britt v. Superior Court, supra, 20 Cal.3d at p. 852, 143 Cal.Rptr. 695, 574 P.2d 766.) Nor is it persuasive for the state to argue that the restraint upon appellants' rights would come about as a result of private, as opposed to state, action. "The crucial factor is the interplay of governmental and private action for it is only after the initial exertion of state power represented by . . . (enforcing section 650a) that private action takes hold." (N. A. A. C. P. v. Alabama, supra, 357 U.S. at p. 463, 78 S.Ct. at p. 1172; see also People v. Fogelson (1978) 21 Cal.3d 158, 164, fn. 6, 145 Cal.Rptr. 542, 577 P.2d 677; Huntley v. Public Util. Com. (1968) 69 Cal.2d 67, 73, 69 Cal.Rptr. 605, 442 P.2d 685.) Thus, here, by enforcing section 650a, the state either inhibits the exercise of free speech or exposes the speaker who dares, to retaliation by a foreign government.

It is clear that in flatly prohibiting anonymous public appearances by persons exercising their First Amendment rights, section 650a sweeps too broadly. It must be emphasized that appellants do not assert that there is an absolute right to anonymity while engaging in First Amendment activities. Nor do they fail to recognize that the state has a legitimate interest in crime prevention and detection, and that under certain circumstances concealment of identity may give rise to law enforcement problems. But, as they point out, other statutes presently exist which prohibit illegitimate and improper use of concealment of identity and any dangers potentially arising from First Amendment activity which is undertaken by masked participants.

For example, section 185 provides:

It shall be unlawful for any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of:

One Evading or escaping discovery, recognition, or identification in the commission of any public offense.

Two Concealment, flight, or escape, when charged with, arrested for, or convicted of, any public offense. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor.

The People argue that section 185 is directed at a different stage of criminal activity than is section 650a. They claim that section 185 is directed at the "subsequent criminal offenses which 650a was designed to discourage." At oral argument, the People claimed that section 185 does not come into play until after a crime has been committed. This argument is unsupported by citation to applicable authority. Section 185 prohibits the use of a mask for the purpose of "(e)vading or escaping . . . recognition, or identification in the commission of any public offense." The plain meaning of this language covers the situation where a mask is worn prior to the actual commission of the offense.

The People argue that it is absurd to compel the state "to sit back and wait until . . . (appellants) and their 200 confederates have stormed the Iranian Embassy, sacked it, and then been captured before it is entitled to...

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11 cases
  • People v. Chapman
    • United States
    • United States State Supreme Court (California)
    • April 26, 1984
    ...Court (1980) 109 Cal.App.3d 887, 167 Cal.Rptr. 447, cert. den. 450 U.S. 1042, 101 S.Ct. 1760, 68 L.Ed.2d 239; Ghafari v. Municipal Court (1978) 87 Cal.App.3d 255, 150 Cal.Rptr. 813; Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil (1961) 70 Yale L.J. 1084.)......
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