State v. North Dakota Education Ass'n

262 N.W.2d 731, 4 A.L.R. 4th 724, 1978 N.D. LEXIS 217

• Court: North Dakota Supreme Court
• Decided: February 16, 1978
• Docket: Crim. 612
• Status: Published

Opinions

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 circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilbume was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books.⁶

Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day.⁷ Even the Federalist Papers, writ-

“We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; N. A. A. C. P. v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face.” 362 U.S. 64, 65, 80 S.Ct. 538.

This language appears to us to be controlling, even if we were disposed to hold otherwise, which we are not. Other courts have attempted to distinguish other statutes in the face of the Talley decision, with dubious success. See State v. Fulton, 337 So.2d 866 (La.1976), and cases cited.

The State’s Attorney in the case now before us attempts to draw a distinction between the statute we are construing and the statute construed in Talley on the basis that the latter applied to all pamphlets, while our statute applies only to publications relating to political matters. The flaw in this argument is that the publications referred to by the Supreme Court in the language quoted above were also political, some of them being among the most profound political documents ever written in any age. If the founders of our nation wrote the First Amendment in order to protect the freedom to write anonymous political tracts, along with other purposes, a statute which limits anonymity in political writings is just as violative of the Constitution as a statute which applies to all anonymous writings.

It is worth remembering that among the glories of our nation’s history are documents written under pseudonyms by men who were to become the second, third and fourth Presidents as well as the first Vice President, the first Chief Justice and the first Secretary of the Treasury and Secretary of State of the United States.² We should also remember that the political tracts without which the Revolutionary War could not have been won, entitled Common Sense, written by Thomas Paine, were published under the pseudonym “An Englishman,” which he then was, in 1776.

The cases cited by counsel do not greatly assist us. In State v. Barney, supra, a statute bearing some similarity to the one before us was held void for vagueness, on grounds that would not apply to our statute. In Canon, supra, the statute being construed forbade publications “designed to injure or defeat any candidate for nomination or election to any public office by reflecting upon his personal character or political action, . . .” unless the names and addresses of the sponsors were specified. The statute was held unconstitutional on the narrow ground that it discriminated against nonresident individuals by requiring sponsorship, if sponsored by an individual, by a California voter. However, the Canon court also attempted to distinguish Talley on the broader freedom-of-speech issue, and perhaps successfully, by pointing out that the California statute, while impairing to some extent freedom of expression, showed the necessary compelling interest (avoid-anee of political smears and character assassination) which outbalanced the slight effect on freedom of speech.

The case before us cannot be so distinguished. Section 16-20-17.1, quoted above, is not directed against attacks on the character or actions of candidates, as the California statute in Canon was, nor is it directed against the publication of false information, as a different statute of this State, Section 16-20-17.3, N.D.C.C., is. The latter reads:

“16-20-17.3. Publication of false information in political advertisements— Penalty. — No person shall knowingly sponsor any political advertisement containing false information, whether on behalf of or in opposition to any candidate for public office, initiated measure, referred measure, or constitutional amendment, and whether such publication shall be by radio, television, newspaper, pamphlet, folder, display cards, signs, posters or billboard advertisements, or by any other public means. Any person who shall violate the provisions of this section shall be guilty of a class A misdemeanor.”

The latter statute is not involved in the present appeal, and we express no opinion on its constitutionality, for that reason. We mention it to show that this State does have a statute directed specifically against false advertising in electoral matters.

The wording of the statute before us, Section 16-20-17.1, N.D.C.C., differs radically from the California statute construed in Canon, in that our statute applies to all political advertisements, “whether on behalf of or in opposition to” candidates or measures, and applies to all types of advertisements, whether true or false. In People v. Duryea, 76 Misc.2d 948, 351 N.Y.S.2d 978 (1974), affirmed 44 A.D.2d 663, 354 N.Y.S.2d 129 (1974), the court used wording almost directly applicable here:

“I conclude, therefore, that even granting that the compelling nature of the concern for ‘the integrity of political campaigns’ is sufficient to permit some limitations on totally free expression, this statute is not narrowly enough drawn to further the State’s legitimate interest. It is in no way limited to deterring campaign defamation and financing violations. It makes anonymity a crime when anyone (candidate, political organization, private organization or private individual) prints or distributes any literature ‘in quantity’ (poster, handbill or letter) containing any statement (reckless, responsible, political, personal, true, false, favorable, unfavorable, scrurrilous [sic ] or discreet) concerning any candidate (declared or undeclared) or issue on the ballot (constitutional amendment or proposition) ‘in connection with’ any party or governmental election.” [Emphasis in original.] 351 N.Y.S.2d 978 at 995.

We must add that we can sympathize and even agree with the motives of *the sponsors of the parent statute of Section 16-20-17.1, adopted in 1945, and subsequent amendments in 1959, 1967, and 1969. The distribution of baseless, anonymous slanders, often during the last few hours before an election, is not unknown to this State. It was to deter such abuses of the electoral process, and to make it possible to obtain recompense from their authors, that such statutes as Section 16-20-17.1 were advocated and enacted. Anyone who has been victimized by anonymous smears will understand the motives of the sponsors. But constitutional imperatives must prevail and our hopes must lie in the good sense and decency of the electorate, or in the passage of a more carefully drawn statute designed to meet the specific evil.

The judgment of conviction is reversed and the defendant is ordered acquitted. The statute under which the defendant was convicted is unconstitutional. It violates both the First Amendment of the United States Constitution and Section 9 of the North Dakota Constitution.

ERICKSTAD, C. J., and PEDERSON, J., concur.

1 . “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Amend. 1, U.S.Const.

“Section 9. Every man may freely write, speak and publish his opinions on all subjects, being responsible for the abuse of that privilege. . . .” N.D.Const.

6 “6 Penry was executed and Udal died as a result of his confinement. 1 Hallam, The Constitutional History of England (1855), 205-206, 232.

7 “7 In one of the letters written May 28, 1770, the author asked the following question about the tea tax imposed on this country, a question which he could hardly have asked but for his anonymity: ‘What is it then, but an odious, unprofitable exertion of a speculative right, and fixing a badge of slavery upon the Americans, without service to their masters?’ 2 Letters of Junius (1821) 39.” ten in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.

2 . James Madison, fourth President as well as Secretary of State under Jefferson, together with Alexander Hamilton, first Secretary of the Treasury under Washington, and John Jay, first Chief Justice of the United States, wrote the Federalist Papers under the name of “Publius,” in 1787. John Adams, first Vice President and second President, wrote anti-British tracts, under the name “Novangulus” in 1775. Thomas Jefferson, third President and first Secretary of State, wrote a document, published anonymously, perhaps without his consent, under the title “A Summary View of the Rights of British America” in 1774.