State v. North Dakota Ed. Ass'n

• Decision Date: 16 February 1978
• Docket Number: No. 612,612
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. NORTH DAKOTA EDUCATION ASSOCIATION, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 731

262 N.W.2d 731

4 A.L.R.4th 724

STATE of North Dakota, Plaintiff and Appellee, v. NORTH DAKOTA EDUCATION ASSOCIATION, Defendant and Appellant.

Crim. No. 612.

Supreme Court of North Dakota.

Feb. 16, 1978.

Chapman & Chapman, Bismarck, for defendant and appellant; argued by Daniel J. Chapman, Bismarck.

Rolf P. Sletten, Asst. State's Atty., Bismarck, for plaintiff and appellee.

VOGEL, Justice.

This is an appeal from a conviction of the appellant of a violation of Section 16-20-17.1, N.D.C.C., which reads:

"16-20-17.1. Political advertisements to disclose name of sponsor. Each and every political advertisement, whether on behalf of or in opposition to any candidate for public office, initiated measure, referred measure or constitutional amendment, and whether such advertisement shall be by newspaper, pamphlet or folder, display cards, signs, posters or billboard advertisements, or by any other public means, shall disclose at the bottom of same the name or names of the sponsors of such advertisement, and the name or names of the person, persons, associations, partnerships or corporations paying for such advertisement, except however, this section shall not apply to campaign buttons. At the close of every radio or television broadcast containing any advertising announcements or talk for or against any candidate for public office, any initiated measure, referred measure, or constitutional amendment to be voted on by the people, there shall be announced at the close of said broadcast the name or names of the person, persons, associations, partnerships or corporations paying for such radio or television broadcast."

The penalty for violating Section 16-20-17.1, N.D.C.C., is specified in Section 16-20-17.2, N.D.C.C., which reads:

"16-20-17.2. Penalty. Any person, association, partnership or corporation who shall violate the provisions of section 16-20-17.1 and who shall fail or neglect to disclose the name or names of the sponsors of such political advertisement, or the name or names of the persons, associations, partnerships or corporations paying for such advertisement, or who shall print, distribute, or cause to be printed or distributed, any matter described in section 16-20-17.1 hereof which does not comply with the provisions of section 16-20-17.1, shall upon conviction thereof be punished by imprisonment in the county jail for not less than thirty days or more than six months, or by a fine of not less than one hundred dollars or more than five hundred dollars, or by both such fine and imprisonment. Any editor of a newspaper, managing officer of any printing establishment, radio station, novelty concern, poster or billboard advertising company printing or furnishing such political advertisement without disclosing the information as provided in section 16-20-17.1 shall also be liable to the penalties prescribed herein."

Upon conviction after a jury trial, sentencing was deferred until June 21, 1978, subject to the condition that the appellant not violate the law for one year.

The appellant is an association of a great majority of the classroom teachers of North Dakota. It distributes a publication known as the "North Dakota Education News" six times a year to its members and to other associations on its exchange list, to newspapers, radio and television stations, to all legislators, and to all libraries throughout the State. Once a year it also distributes the publication to all classroom teachers in North Dakota, members and nonmembers alike. The publication involved in this case included all classroom teachers in North Dakota.

In its edition of August 27, 1976, it printed an appeal for a "no" vote on Initiated Measure No. 1 which would have limited the State's total expenditures in each biennium. The appeal covered about four-fifths of a printed page and did not contain a disclaimer such as is required by Section 16-20-17.1, supra, if applicable.

Mr. Robert McCarney, the primary sponsor of Initiated Measure No. 1, signed a complaint against the Association, alleging a violation of Section 16-20-17.1, and the case went to trial before a jury and resulted in conviction. This appeal followed.

The Association asserts (1) that the publication was not a newspaper or otherwise included within the description of means by which the statute could be violated; (2) that the appeal to vote against Initiated Measure No. 1 was not an "advertisement" within the meaning of the statute; (3) that there was no "public distribution" of the publication; (4) that the court erred in failing to instruct the jury on culpability; (5) that the court erred in failing to define "newspaper"; and (6) that the statute is unconstitutional as violative of the First Amendment of the Constitution of the United States and Section 9 of the Constitution of the State of North Dakota relating to freedom of speech. ¹

We hold that the statute is violative of the State and Federal Constitutions.

I

The publication in question has the appearance of a newspaper, but we need not decide whether it is a newspaper or not. Even if not a newspaper, it is within the description "any other public means" forbidden by the statute. A publication distributed to the broad readership to which this one is sent is a "public means" of distributing the views of the publisher, in our view.

II

Again, the questioned appeal to vote against Initiated Measure No. 1 has the appearance of an advertisement. The publication in question accepts advertising from commercial advertisers. The issue of August 27, 1976, which contained the appeal to vote against Initiated Measure No. 1, contained advertisements from Blue Cross/Blue Shield of North Dakota, Northern School Supply Company, and others who sought to make a favorable impression on the members of the Association. In appearance the appeal to vote against Initiated Measure No. 1 is no different from the advertisements of the commercial advertisers. We hold that it could properly be held an "advertisement" within the meaning of Section 16-20-17.1, N.D.C.C.

III

We also have no doubt that there was a distribution by "public means" of the publication. It was not only sent by mail to members of the Association, but also to prospective members, members of the Legislature, and public libraries. This is sufficient. See State v. Reisler, 194 N.W.2d 230 (N.D.1972), in which we held that a distribution to one person of one copy of a pamphlet did not constitute a distribution. However, we held:

"We construe the word 'distribute' in its ordinary and normal sense to mean a distribution or dispensing of the prohibited material to the public generally, or to a considerable number of people, designed to affect the results of an election." 194 N.W.2d at 233.

The publication in question was distributed to a considerable number of people. It was intended to be read by a substantial segment of the public, including library patrons. The appeal for votes against the Initiated Measure was made by a "public means."

IV

The Association asserts that the court erred in failing to instruct the jury that the degree of culpability which must be proved by the State is "willfully," citing Section 12.1-02-02, N.D.C.C., subsection 2 of which provides:

"2. If a statute or regulation thereunder defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is willfully."

However, Section 12.1-02-02, N.D.C.C., is a part of a recodified criminal code, and applies only to that code. It does not apply to earlier statutes which were not repealed by the codification, such as the statute under consideration in this case.

Section 16-20-17.2 contains no requirement as to the degree of culpability. It is a statute which provides for a penalty for the doing of an act, regardless of willfulness. See City of Dickinson v. Mueller, 261 N.W.2d 787 (N.D.1977).

There was no error in the court's failure to instruct on willfulness.

V

" Newspaper" is a common term, readily understood. As such, it need not be defined, particularly in the absence of a request for definition. State v. Piper, 261 N.W.2d 650 (N.D.1977); State v. Motsko, 261 N.W.2d 860 (N.D.1977).

Furthermore, advertising by newspaper is only one of several alternative methods of violating the statute, including pamphlets or folders, display cards, signs, posters or billboard advertisements, or by any other public means. We believe all of these terms are commonly understood by intelligent jurors and need not be defined, although the trial court may do so if it wishes.

VI

We turn now to the constitutionality of Section 16-20-17.1.

The parties cite various decisions of other courts which are not directly in point, including State v. Barney, 92 Idaho 581, 448 P.2d 195 (1968), and Canon v. Justice Court for Lake Valley Jud. Dist., 61 Cal.2d 446, 39 Cal.Rptr. 228, 393 P.2d 428 (1964). At our request, supplementary briefs were filed by both parties, discussing the applicability of Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960). In that case an ordinance of Los Angeles prohibiting distribution in any place under any circumstances, of handbills which did not have printed thereon the name and address of the person who printed, wrote, compiled, or manufactured them, and the person who caused them to be distributed was held to be an unconstitutional violation of the First Amendment as it related to freedom of speech.

"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. 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. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the...