Superior Court of Imperial County, No. 2249, Donald R. Work, Judge.
Opinion by Wiener, J., with Brown (Gerald), P. J., and Staniforth, J., concurring.
The question presented here is whether the provisions of Elections Code section 29410, prohibiting all anonymous
political campaign literature, is constitutional.*fn1 We decide the statute constitutes on its face an unconstitutionally overbroad restraint of freedom of expression contrary to the First Amendment of the United States Constitution and article I, section 2, of the California Constitution.*fn2 We affirm the judgment granting a writ of prohibition restraining further criminal proceedings for alleged violations of the statute.
A complaint filed in the municipal court charged petitioners Richard Schuster, Robert Simon and Melvin Walter Lewis with violating section 29410. They sought a writ of prohibition in the superior court after their demurrer to the complaint in the municipal court was overruled. Their petition was granted. The People appeal. (Code Civ. Proc., §§ 904.1, 1110.)
Section 29410 compels disclosure on the face of any writing "having reference to an election, or any candidate, or to any measure" of the name and address of the individual "responsible for it." In essence, it constitutes a prohibition of all anonymous political campaign literature, exempting only support statements such as "Yes on," "Vote for" or "Support." Even with the enumerated exemptions, the statute prohibits all anonymous literature which sets forth any arguments, information or ideas in support or in opposition to candidates or ballot measures.
The statute, in attempting to regulate political speech, touches the core of First Amendment protection. The First Amendment exists to protect free discussion of governmental affairs (Mills v. Alabama (1966) 384 U.S. 214, 218 [16 L.Ed.2d 484, 488, 86 S.Ct. 1434, 1437]), for "speech concerning public affairs is more than self-expression; it is the essence of self-government." (Garrison v. Louisiana (1964) 379 U.S. 64, 74-75 [13 L.Ed.2d 125, 133, 85 S.Ct. 209, 216].) The constitutional safeguard was fashioned "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." (Roth v. United States (1957) 354 U.S. 476, 484 [1 L.Ed.2d 1498, 1506, 77 S.Ct. 1304, 1308]; New York Times Co. v. Sullivan (1964) 376 U.S. 254, 269 [11 L.Ed.2d 686, 700, 84 S.Ct. 710, 720, 95 A.L.R.2d 1412]; see Hardie v. Eu (1976) 18 Cal. 3d 371, 376 [134 Cal. Rptr. 201, 556 P.2d 301].)
"First Amendment freedoms are not only protected from patent restraints, but also from more subtle forms of governmental interference." (Huntley v. Public Util. Com. (1968) 69 Cal. 2d 67, 72 [69 Cal. Rptr. 605, 442 P.2d 685]; see Britt v. Superior Court (1978) 20 Cal. 3d 844, 852 [143 Cal. Rptr. 695, 574 P.2d 766].) Since disclosure requirements undoubtedly tend to restrict the freedom to distribute and consequently deter free speech, the latter right encompasses the right to remain anonymous. (Talley v. California (1960) 362 U.S. 60, 64 [4 L.Ed.2d 559, 563, 80 S.Ct. 536, 538]; Huntley v. Public Util. Com., supra, 69 Cal. 2d at p. 73.) Indeed, "[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 [2 L.Ed.2d 1488, 1499-1500, 78 S.Ct. 1163]; Britt v. Superior Court, supra, 20 Cal. 3d at p. 853.)" (Ghafari v. Municipal Court (1978) 87 Cal. App. 3d 255, 260 [150 Cal. Rptr. 813].) Further, "[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." (Talley v. California, supra, 362 U.S. at p. 64 [4 L.Ed.2d at p. 562].)
The close relationship of free speech to the political process in this state, emphasized by our state Supreme Court in Robins v. Pruneyard
Shopping Center (1979) 23 Cal. 3d 899, 907-908 [153 Cal. Rptr. 854, 592 P.2d 341], has recently been confirmed by the United States Supreme Court in Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 80-81 [64 L.Ed.2d. 741, 100 S.Ct. 2035, 2040-2041]. Article I, section 2, of the California Constitution affords protection more definitive and inclusive ...