State v. Pierce

158 N.W. 696, 163 Wis. 615, 1916 Wisc. LEXIS 314

• Court: Wisconsin Supreme Court
• Decided: June 13, 1916
• Status: Published

Opinions

Wiwslow, O. J.

The indictment charges that Mr. Pierce, being a mere private citizen residing in Nock county and not a candidate or committeeman, spent money in Dane county in investigating the governmental, political, and financial affairs of the state and communicating the results of his investigations to the electors of the state generally, for the purpose of influencing the voting at the approaching election in Dane county. The communication must, of course, have been by word of mouth or by the circulation of printed matter.

These acts are said to be criminal because of the provisions of sec. 12.05 of. the Corrupt Practices Act, which is quoted at length in the statement of facts.

The suggestion that these acts constitute crime is somewhat startling, but the state points to the fifth 'section of the Corrupt Practices Act (sec. 12.05, Stats. 1915), and upon consideration of this section it seems clear that it forbids such acts as are here alleged. The only question remaining, therefore, is the question whether the constitution permits such acts as are here alleged to be prohibited.

Exeeclom of speech and freedom of tbe press have always been supposed to be the very corner-stones of Anglo-Saxon democratic institutions. All of our state constitutions, as well as the federal constitution, expressly preserve these rights. The constitution of Wisconsin declares (sec. 3, art. I), “Every person may freely speak, write and publish his sentiments-on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press”

This provision is somewhat more definite .and sweeping than is contained in some of the constitutions. It declares that the freedom extends to “all subjects” and expressly prohibits the restraint or abridgment of that freedom. The ordinary meaning of the word abridge is to diminish or to lessen but not to cut off entirely.

The federal constitution (amendm. I) provides that “Congress shall make no law . . . abridging the freedom of speech ox of the press.”

The question presented is whether sec. 12.05 restrains or abridges the liberty of the citizen to freely speak and “publish his sentiments on all subjects.”

We think there is no doubt that it does do so.- Under its terms a man or body of men who are honestly convinced of the necessity of a change of policy in the state government commit a crime if they spend any money in another county than their own in bringing their views to the notice of the voters of such other county. There is really but one excep-tion to this, and that is that a public speaker may pay his traveling expenses in going to and from his own meetings, but even he may not hire a hall in which to make his speech.

If this be not an abridgment of freedom of speech it would be difficult to imagine what would be. Under such a law no pioneer in any reform which depends for its success on' a change in the law could leave his own county and communicate his sentiments at his own expense to his fellow citizens of other counties without committing a crime. Under such laws no great propaganda for better laws and better political conditions wbicb bas not been formally taken up by a political party can ever be carried on, and tbe reformer whose eye kindles with the dawning light of a better day must be content to confine his personal activities to the inhabitants of his own small bailiwick. Almost every forward step in political and governmental affairs comes as the result of long agitation and discussion in the press, on the rostrum, and in the open forum of personal contact. This agitation and .discussion often goes on for years before the idea is formally indorsed by any party. Yet it will generally be the case that during this period there will be individual candidates in one party or the other, or both, who favor the new thought. Now this law means that in such a situation no man or group of men can do a stroke of political work involving expense in any other county than their own, however legitimate and praiseworthy be the means which are used. 'No political committee will take up the work for the very good reason that the party organization has not indorsed the doctrine.

There are times also when devoted citizens firmly believe that no organized political party stands for the right or deserves support and that an independent candidacy is necessary. Can it be that under such circumstances these citizens can be wholly deprived of the right to go to any part of the state at their own expense,-collect information on the subject, and endeavor by word of mouth or by the distribution of printed matter to put the issue as they see it before such fellow voters who are not residents of their own county ?

We are very clearly of opinion that this question must be answered in the negative.

Mr. Pierce, according to the indictment, did this thing. He, being a resident of Rock county, spent money in Dane county in gathering facts concerning governmental affairs and in communicating those facts to the people of the state at large with the intent of influencing the voting at the ap-proacbing election. This cannot be made a criminal act while the constitutional guarantees of freedom of speech and freedom of the press remain as they now are.

We are by no means unmindful of the high and admirable purposes which inspired the authors of the Corrupt Practices Act. There is no member of this bench who is not in the fullest sympathy with any legislation which will tend to reduce to an absolute minimum the danger of corruption and coercion during political campaigns; but when such a law goes beyond regulation and absolutely prohibits that which the constitution expressly protects, the court can do nothing but say so.

This does not mean that the Corrupt Practices Act is invalid as a whole. We are now concerned with sec. 12.05 alone. We feel obliged to say that so far as it prohibits the doing of such acts as are charged in this indictment it violates the constitutional guarantees of freedom of speech and freedom of the press. We go no further. This section was certainly not the inducement to or the compensation for the balance of the law; in other words, we are well assured that the legislature would not have rejected the entire law had they realized that this section abridges the freedom of speech and freedom of the press in violation of the constitutional guarantees. The remaining sections of the law therefore are unaffected by this decision.

By the Qourt. — Order affirmed, and action remanded with directions to dismiss the same.

The following opinion was filed July 17, 1916: