State v. Burgess

• Decision Date: 01 May 1989
• Docket Number: No. 88-KD-1314,88-KD-1314
• Citation: 543 So.2d 1332
• Parties: STATE of Louisiana v. Paul BURGESS and James L. Fitzgerald.
• Court: Louisiana Supreme Court

Page 1332

543 So.2d 1332

STATE of Louisiana v. Paul BURGESS and James L. Fitzgerald.

No. 88-KD-1314.

Supreme Court of Louisiana.

May 1, 1989.

William J. Guste, Jr., Atty. Gen., John M. Mamoulides, Dist. Atty., Dorothy A. Pendergast, Asst. Dist. Atty., for plaintiff-appellant.

A. Bruce Netterville, Gretna, for defendant-appellee.

MARCUS, Justice.

On October 28, 1987, Paul Burgess and James L. Fitzgerald were charged by bill of information with one count of violating La.R.S. 18:1463(B) and one count of violating La.R.S. 18:1463(C). The charges stemmed from a letter sent by the Westbank Citizens for Better Government during an election for state representative in district 87, supporting Burgess' candidacy and making statements against his opponent, N.J. Damico. The letter also included a copy of a campaign flyer used by Damico in a prior election, showing Damico and former governor Edwin Edwards standing together and captioned "[v]ote the Edwards/Damico team." The enclosed letter read "[l]et's break up this team before it breaks us!" The letter was signed by James L. Fitzgerald as president of the Westbank Citizens for Better Government. Defendants filed a motion to quash the bill of information on the ground that La.R.S. 18:1463(B) and (C) were unconstitutional. The trial judge, finding both sections unconstitutional, granted the motion to quash. ¹ We granted the state's application for review and docketed the case as an appeal. ²

La.R.S. 18:1463(B) and (C)(1) provide:

B. No person shall cause to be printed or assist in the distribution, transportation, or transmission by any means of any facsimile of an official ballot or cause to be printed, distributed, transported, or transmitted any unofficial sample ballot, writing, pamphlet, paper, photograph, or printed material, which falsely alleges that any candidate or group of candidates participating in a primary or general election are supported by or affiliated with another candidate, group of candidates, or other person, or a political faction.

C. (1) No person shall publish, distribute or transmit, or cause to be published, distributed, or transmitted, any oral, visual or written material containing any statement which makes scurrilous, false, or irresponsible adverse comment about a candidate for election in a primary or general election or about a proposition to be submitted to the voters, unless the publication contains the name(s) of the person(s) responsible for its publication. ³

The sole issue presented for our consideration is whether La.R.S. 18:1463(B) and (C)(1) are unconstitutional infringements on free speech. ⁴ We begin by considering La.R.S. 18:1463(C)(1).

In the seminal case of Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), the United States Supreme Court declared unconstitutional a Los Angeles ordinance prohibiting the distribution of

any handbill in any place under any circumstances, which does not have printed on the cover, or the face thereof, the name and address of ... the person who printed, wrote, compiled or manufactured same [or] the person who caused the same to be distributed....

The Court reasoned that anonymity was important to freedom of expression under the first amendment. The state urged that the ordinance was aimed at providing a way to identify those responsible for fraud, false advertising and libel. The Court, rejecting this argument, stated:

[T]he ordinance is in no manner so limited, nor have we been referred to any legislative history indicating such a purpose. Therefore, we do not pass on the validity of an ordinance limited to prevent these or any other supposed evils. The ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires.

In his concurrence, Justice Harlan noted that even given a showing that the ordinance was aimed at "obnoxious" handbills, "such a generality is for me too remote to furnish a constitutionally acceptable justification for the deterrent effect on free speech which this all-embracing ordinance is likely to have." In City of Bogalusa v. May, 252 La. 629, 212 So.2d 408 (1968), this court held unconstitutional a Bogulusa city ordinance similar to that in Talley. We quoted with approval the language of the trial judge, who stated "for an ordinance to be valid it must be narrowly drawn to avoid specific evils and that an ordinance couched in overly broad terms would not be sustained."

State v. Fulton, 337 So.2d 866 (La.1976), dealt with the predecessor statute to La.R.S. 18:1463(C)(1). ⁵ We found the only difference between this statute and the Talley ordinance was that the former was limited to handbills relative to or concerning any candidate for election or nomination. We found this limitation did not sufficiently narrow the statute to remove it from the scope of Talley and found no compelling state interest that would justify the statute. Accordingly, we declared the statute unconstitutional. Thereafter, the legislature redrafted the statute as La.R.S. 18:1463(C)(1), essentially limiting the prohibition against anonymity to those statements which make "scurrilous, false, or irresponsible adverse comment" about a "candidate for election" or a "proposition to be submitted to the voters."

As a threshold matter, the state argues that La.R.S. 18:1463(C)(1), unlike the statute struck down in Fulton, does not violate constitutional standards, since it merely forbids anonymous false statements designed to mislead voters in an election and such "lies and false statements" are not constitutionally protected. We disagree. The standard for constitutionally protected false speech in the context of public figures was given in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In that case, the Court held the Constitution prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct "unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Although this standard was applied in the context of civil defamation suits, it is clear the standard defines the parameters of protected speech involving public figures. La.R.S. 18:1463(C)(1) by its very nature applies to public figures, but the term "false" as used by the legislature does not conform to the constitutional standard and includes protected speech. ⁶ In addition, the terms "scurrilous" and "irresponsible adverse comment" are so broad as to include both true speech and protected false speech about a candidate. Moreover, we find it particularly disturbing that this statute applies to "scurrilous, false, or irresponsible adverse comment" concerning "a proposition to be submitted to the voters." By impacting on the discussion of issues before the voters, this section of the statute comes close to regulating "pure speech," which is entitled to "comprehensive protection under the First Amendment." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The Supreme Court has noted that "[u]nder the First Amendment there is no such thing as a false idea." Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). The first amendment is designed to protect discussions about "structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes." Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). Because La.R.S. 18:1463(C)(1) attempts to regulate the free discussion of candidates and propositions submitted to the voters, we find that it clearly impacts on speech protected by the first amendment.

However, such a finding does not end our inquiry. The state can regulate protected speech, but it cannot do so without bearing the burden of showing its restriction is justified. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). The restriction must be no greater than is necessary to protect the state's interest. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). The state argues that the restriction is valid because it has a strong interest in seeing that voters know who is responsible for certain publications, in order that they can properly evaluate the statements contained in them and informatively exercise their right to vote. ⁷ We agree that the state has a strong interest in promoting fair elections. On the other hand, the right of free speech during an election is a powerful one. The Supreme Court has noted "there is practically...