Messerli v. State
| Decision Date | 28 November 1980 |
| Docket Number | No. 4326,4326 |
| Citation | 626 P.2d 81 |
| Parties | Lloyd MESSERLI, Petitioner, v. STATE of Alaska, Respondent. |
| Court | Alaska Supreme Court |
Nancy R. Gordon, Josephson & Trickey, Inc., Anchorage, on behalf of Alaska Civil Liberties Union, for petitioner.
Patrick R. Gullufsen, Asst. Atty. Gen., Avrum M. Gross, Atty. Gen., Juneau, for respondent.
Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.
Lloyd Messerli placed in the Anchorage Times and the Anchorage Daily News two identical advertisements which sought to influence the citizens of the Municipality of Anchorage in their votes on certain municipal bond propositions. A copy of the advertisement is attached to this opinion.
Under the Alaska Campaign Disclosure Act, AS 15.13.010-.130, Messerli was required to file a written report, which would be available for public inspection, containing (1) his name, address, principal occupation, type of business engaged in, and the name of his employer; (2) any expenditure he made in favor of or against a particular named ballot proposition, including the amount, date and check number, and the name and address of the payee to whom the expenditure was made, and (3) the purpose of the expenditure, i. e., radio, brochures, newspaper advertising, et cetera. 1
Messerli refused to make and file this report, and was prosecuted by the state for a violation of the Act, a misdemeanor. 2 He claimed that enforcement of the Act in this instance would violate his right to free speech and invade his privacy. His motion to dismiss the prosecution on these grounds was denied by the district court. A petition for review to the superior court was also denied.
Messerli has petitioned this court for review. We grant the petition because of the important constitutional questions involved, and because it would be an exercise of futility to require Messerli to go back to the district court where he would be convicted of the misdemeanor (he readily admits he refused to file the report), and then appeal to the superior court which has already ruled against his legal defense, and finally to appeal in the regular manner to this court. 3
Governmental abridgment of the right to free expression, by speech or by writing, is forbidden by the first amendment to the United States Constitution. It is provided there that
Congress shall make no law ... abridging the freedom of speech, or of the press ....
This provision has been made applicable to state governmental action by the fourteenth amendment to the federal constitution. 4
The Alaska Constitution also protects free speech, but in a more explicit and direct manner. Article I, section 5, provides:
Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.
There is also a right to privacy in the federal constitution, which is derived from a broad reading of the due process clause of the fourteenth amendment, or other federal constitutional provisions. 5 But again, the constitutional right to privacy in the Alaska Constitution is explicit and direct. Article I, section 22, provides in part:
The right of the people to privacy is recognized and shall not be infringed.
We have held that this express right to privacy is broader than that afforded by the United States Constitution. 6
In expressing the rights to free speech and privacy, the framers of our constitution appear to have recognized a right of universal freedom and a right to be left alone which is rooted in the natural inclination of human beings. 7 But these rights, in a free society such as ours, have never been recognized as absolute and without limitations. As Professor Bodenheimer points out:
It has been the experience of free societies that all liberties are liable to abuse by unscrupulous individuals and groups, and that they must therefore be subjected to certain restraints in the interest of the public weal. 8
Because of this, it is a function of this court to create a workable equilibrium and synthesis between the two polar ideas of freedom and authority. 9
In effect, there must be here a balancing of conflicting rights and interests. On the one hand, we have the express and unambiguous constitutional rights of free speech and privacy, which on their face would appear to admit of no exceptions 10 and which would prevent any restrictions by the legislature. On the other hand, we can envision an interpretation of these constitutional provisions which would allow the legislature, without any manifest need, to restrict or suspend these constitutional rights by a simple reference to the public interest. We cannot accept the latter, because then the constitutional guarantees would have little or no meaning. We also cannot accept the former, which may be referred to as libertarian absolutism, because absolute freedom of speech and absolute privacy in all situations and on all occasions would in certain instances be incompatible with the preservation of other rights essential in a democracy.
The balance we reach in weighing these two conflicting interpretations is found in a former decision of this court, Breese v. Smith, 501 P.2d 159 (Alaska 1972). In that case, a boy was expelled from school because his hair was longer than that permitted by school regulation. We determined that one's natural right to liberty, specifically recognized in article I, section 1, of the Alaska Constitution, 11 encompassed "the fundamental personal right of students in our public schools to select their own individual hair styles without governmental direction." 12 However, we held that such right of liberty is not absolute, and there may be occasions when governmental intervention or regulation would be permissible. In achieving a balance between the individual's right to liberty and society's right to impose some limitation on individual liberty, we established the following rule:
Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgment in question was justified by a compelling governmental interest. 13
We further stated that we thought the "adoption of the compelling interest standard best comports with the kind of ordered liberty which represents the core of Alaska's constitutional heritage." 14
That is the test we apply in this case. 15 The question is whether the state has sustained its substantial burden of establishing that the impairment of Messerli's right to publish freely, by subjecting him to the reporting and disclosure requirements we have mentioned, is justified by a compelling governmental interest. The state does not dispute the existence of a burden on Messerli in being subject to the disclosure and reporting requirements of the Alaska Campaign Disclosure Act. However, it contends that the burden is valid because such requirements further a compelling public interest.
In making this argument, the state relies to a large extent on the case of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), where the United States Supreme Court sustained the reporting requirements of the Federal Election Campaign Act 16 against the challenge that the statute abridged freedom of speech contrary to the first amendment to the United States Constitution. A portion of the opinion sustaining the compelled disclosure of information under the federal act is of interest here. The Supreme Court said:
First, disclosure provides the electorate with information "as to where political campaign money comes from and how it is spent by the candidate" in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.
Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return. And, as we recognized in Burroughs v. United States ..., Congress could reasonably conclude that full disclosure during an election campaign tends "to prevent the corrupt use of money to affect elections." In enacting these requirements it may have been mindful of Mr. Justice Brandeis' advice:
Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described (elsewhere in the Buckley opinion). 17
The Court announced the test it would require disclosure provisions to pass to stand constitutional muster:
We have long recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since (NAACP v. Alabama, 357 U.S. 449 (78 S.Ct. 1163), 2 L.Ed.2d 1488 (1958)) we have required that the subordinating interests of the state must survive exacting scrutiny. We have also insisted that there be a ...
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