Town of Lantana v. Pelczynski

• Decision Date: 28 February 1974
• Docket Number: No. 73-1066,73-1066
• Citation: 290 So.2d 566
• Parties: TOWN OF LANTANA, Petitioner, v. Jim PELCZYNSKI, Respondent.
• Court: Florida District Court of Appeals

Page 566

290 So.2d 566

TOWN OF LANTANA, Petitioner, v. Jim PELCZYNSKI, Respondent.

No. 73-1066.

District Court of Appeal of Florida, Fourth District.

Feb. 28, 1974.

Charles W. Musgrove, West Palm Beach, for petitioner.

John L. Parker, Jr., West Palm Beach, for respondent.

DOWNEY, Judge.

By petition for writ of certiorari review is sought of an order of the circuit court holding a municipal ordinance of the Town of Lantana unconstitutional.

On the eve of the annual election of town officials, respondent circulated a letter entitled, 'To Lantana With Love', wherein he charged the incumbent mayor, a candidate for reelection, was unable to devote sufficient time to town business due to his other activities, all of which it was claimed redounded to the detriment of the town. As fortune would have it the incumbent lost the following day, and in due course respondent was tried and convicted in municipal court for violating Town Ordinance 8-20. On appeal the circuit court held that the ordinance violated Article I, Sections 4 and 9 of the Florida Constitution F.S.A. and the First Amendment to the Federal Constitution. Ordinance 8-20 provides as follows:

'It shall be unlawful for any candidate or other person, during seven (7) days preceding the day of any election, to publish or circulate or cause to be published or circulated any charge against or attack against any candidate unless such charge or attack has been personally served upon the candidate at least seven (7) days prior to the day of election, and any person failing to comply with this section shall, upon conviction, be guilty of a violation of the code of Lantana. Any answer to a charge or attack that contains defensive matter shall not be construed to be a charge or attack.'

Petitioner contends that the circuit court judgment holding the foregoing ordinance unconstitutional is a departure from the essential requirements of law, in that it is directly contrary to the holding of the Supreme Court of Florida in Ex parte Hawthorne, 116 Fla. 608, 156 So. 619 (1934). In the well considered decision sought to be reviewed (reported at 39 Fla.Supp. 76), the Honorable Marvin U. Mounts, Jr., found that Ex parte Hawthorne, supra, was not controlling; that the rule announced in Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) and Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), contained the guide lines for the decision in this case.

The Lantana ordinance in question was patterned after the statute involved in Ex parte Hawthorne. There the Supreme Court held that a radio address by defendant Hawthorne attacking a candidate for the office of county solicitor and a newspaper publication of that radio address by codefendant Mahoney did not constitute violations of the statute even though no copy of the attack had been served upon the candidate eighteen days prior to the election. The statute did not apply to campaign radio addresses or the newspaper publication thereof. Since the Supreme Court held that the statute did not apply to the acts complained of, the remainder of the decision pertaining to the constitutionality of the statute is obiter dictum, and we would be justified in finding that, though persuasive, it is not binding precedent. State ex rel. Biscayne Ken. Cl. v. Board of Bus. Reg., Fla.1973, 276 So.2d 823; 8 Fla.Jur., Courts, § 168. However, we need not rest our decision there.

Ex parte Hawthorne, supra, was decided in 1934. Since then the United States Supreme Court has decided Mills v. Alabama, supra, wherein the editor of a local newspaper was convicted of violating an Alabama statute which made it a crime for any person to (among other things) do any electioneering on election day or solicit votes in support of any proposition on the ballot or any candidate on election day. The editor had written an editorial urging the electorate to support the affirmative of a proposition on the ballot. On appeal the Supreme Court of Alabama found that the statute did restrict the editor's freedom of press on election day. Nevertheless the court sustained the constitutionality of the statute on the ground that the restrictions on the press were 'reasonable restrictions'; they imposed only minor limitations on the press; and the law served a good purpose because it protected the public from confusive last-minute charges and countercharges and the distribution of propaganda in an effort to influence voters on election day when lack of time precluded response. In unanimously striking down the statute as an abridgment of the freedom of the press, the Supreme Court of the United States said none of the lofty ends was relevant on the question of constitutionality vel non of the statute. Yet, arguments made in support of the Lantana ordinance are the same as those made in support of the Alabama statute: the restraint is not unreasonable; it serves a good purpose; it was imposed in the interest of fair play-to prevent 'dirty tricks'! The Court makes a telling point in Mills when it states, '(The act) silences the press at a time when it can be most effective', i. e., at or around the date of the election.

It appears to us that the ordinance in question constitutes a prior restraint on freedom of speech which has been generally condemned by the Supreme Court of the United States. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Surely, it is unfair for one to withhold charges against a candidate until the eleventh hour before divulging them so that the candidate cannot effectively reply. However, in order to prevent that abuse is it constitutionally permissible to prevent dissemination of all true, newly learned charges which the electorate should know about a candidate simply because the facts were learned after some arbitrary date? The time immediately preceding an election is the period during which the public's need for knowledge is at its height. Cf. Bridges v. California, 314 U.S. 252, 269, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346 (1941). Prior restraint on freedom of speech cannot be justified on the basis that there might be some abuse. As stated in Near v. Minnesota, supra:

'The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.' 283 U.S. at 720, 51 S.Ct. at 632.

Freedom from prior restraint upon speech and press extends to false, as well as true statements. Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907).

Petitioner argues that Mills is inapposite because the letter which was published in the present case does not make respondent a member of the press. Such a position is untenable as the Supreme Court has long since held in Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938), that the press includes not only newspapers, books, and magazines, but also humble leaflets and circulars. As respondent puts it, you do not have to be a card carrying member of the Associated Press or the New York Times to be entitled to the protection of the First Amendment.

Finally, petitioner cites the recent decision of the Supreme Court of Florida in Tornillo v. The Miami Herald Publishing Company, Fla.1973, 287 So.2d 78, as reaffirming the pronouncements contained in Ex parte Hawthorne, supra. We find that the Tornillo case simply holds the statute there involved, § 104.38 F.S.1971, F.S.A., was constitutional because it was not an incursion upon First Amendment rights, in that it did not restrain the flow of information. The footnote reference to Hawthorne cannot be taken as anything more than a reference to the legislative intent underlying the Corrupt Practices Act of 1913. In all events, since Mills v. Alabama, supra, was a decision of the United States Supreme Court on the same federal question involved in the present case, we must follow the decision in Mills v. Alabama, supra, State ex rel. Hawkins v. Board of Control of Florida, Fla.1950, 47 So.2d 608; 8 Fla.Jur., Courts, § 175.

Having concluded that the ordinance is constitutionally infirm as an abridgement of the First Amendment to the United States Constitution, we need not treat the question of vagueness of the ordinance.

The petition for writ of certiorari is denied.

MAGER, J., concurs.

WALDEN, J., dissents with opinion.

WALDEN, Judge (dissenting):

I would grant certiorari and overturn the Circuit Court judgment.

The right of free speech is Not an absolute right. In specific situations it may be required to yield to valid state or local interests springing from public necessity. See State v. Mayhew, 288 So.2d 243 (Fla.1973); Stephens v. Stickel, 146 Fla. 104, 200 So. 396 (1941); Lieberman v. Marshall, 236 So.2d 120, Fla.1970; 6 Fla.Jur., Constitutional Law, §§ 217, 220; 16 Am.Jur.2d, Constitutional Law, §§ 302, 340 and 345.

It is my firm persuasion that the ordinance is constitutional. It serves a most laudable purpose in guarding against the perversion and abuse of the democratic elective process, which process is utterly essential to the continued good political health of our nation. In the vernacular, it recognizes and protects the purity of our elective procedures from a specific 'dirty trick.' The targeted 'dirty trick' is the practice of waiting until just before election to circulate an attack on a candidate after the time has passed when the candidate would have a fair chance to answer and defend. As I view it, the only person who might have cause to complain is the rascal who so waits to attack, knowing that the prospective voter will have only one side of the matter, and hoping that the voter will thereby prejudicially judge the assaulted candidate....