AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, a California Corporation, Eason Monroe, Director, and Willard Carpenter, Associate Director, Petitioners, v. BOARD OF EDUCATION OF the CITY OF LOS ANGELES, Respondent.*
Petitioners seek a writ of mandate to compel the Board of Education of the City of Los Angeles to grant their application for the use of certain public school buildings in which to hold a series of monthly meetings which would be open to the public.
Petitioners' application for the use of the school buildings was denied by respondent Board because petitioners failed and refused to make and deliver to the Board a written ‘Statement of Information’ as required by section 16565 of the Education Code, which implements section 16564 of the same code (Formerly, sections 19440 and 19441.) The pertinent portion of the latter section reads:
‘Any use, by any individual, society, group, or organization for the commission of any act intended to further any program or movement the purpose of which is to accomplish the overthrow of the Government of the United States or of the State by force, violence, or other unlawful means shall not be permitted or suffered.’ The material portions of the implementing section (§ 16565), which includes the required statement of information, provide:
‘No governing board of a school district shall grant the use of any school property to any person or organization for any use in violation of Section 16564.
‘For the purpose of determination by such governing board whether or not any individual, society, group or organization applying for the use of such school property intends to violate Section 16564, the governing board shall require the making and delivery to such governing board, by such applicant of a written statement of information in the following form:
‘Statement of Information
‘The undersigned states that, to the best of his knowledge, the school property for use of which application is hereby made will not be used for the commission of any act intended to further any program or movement the purpose of which is to accomplish the overthrow of the Government of the United States by force, violence lence or other unlawful means;
‘That .........., the organization on whose behalf he is making application for use of school property, does not, to the best of his knowledge, advocate the overthrow of the Government of the United States or of the State of California by force, violence, or other unlawful means, and that, to the best of his knowledge, it is not a communist-action organization or communist-front organization required by law to be registered with the Attorney General of the United States. This statement is made under the penalties of perjury.
‘The school board may require the furnishing of such additional information as it deems necessary to make the determination that the use of school property for which application is made would not violate Section 16564 of the Education Code.’
Petitioners' refusal to furnish the statement of information was based on the ground that the requirement to furnish such information violated their rights and liberties under the Constitutions of both the United States and the State of California.
At the outset we must determine the meaning and purpose of the above quoted sections of the Education Code. This may readily be ascertained by considering together the quoted portion of section 16564 and the first paragraph of section 16565, also quoted, supra. When so considered, it is clear that the effect of these two sections is to place every school board under a legislative mandate not to permit any ‘individual, society, group, or organization’ to make ‘any use’ of school property ‘for the commission of any act intended to further any program or movement the purpose of which is to accomplish the overthrow’ of either the federal or state government by force, violence or other unlawful means. By these sections the legislature has declared that school buildings shall neither be used for the commission of subversive acts nor acts in furtherance of any movement that has for its objective subversive results. It will be noted that these sections prohibit the use of school buildings for the commission of acts as distinguished from the mere academic discussion of revolutionary doctrine.
The second paragraph of section 16565 implements the foregoing legislative intent by providing for the submission to the school board of the required ‘Statement of Information’ upon which the board may determine in advance whether or not the proscribed acts are contemplated by the applicant. The first paragraph of the ‘Statement of Information’ requires the applicant to state (under penalty of perjury) that ‘to the best of his knowledge’ no use will be made of the school property ‘for the commission of any act intended to further any program or movement the purpose of which is to accomplish the overthrow of the Government of the United States * * * means.’ This paragraph follows substantially the wording of the first paragraph of section 16564. As we have said, such language concerns itself only with acts of subversion or acts intended to further the purposes of any subversive element. The second paragraph of the ‘Statement of Information’ requires that the applicant state that, ‘to the best of his knowledge,’ the organization he represents does not ‘advocate’ the violent overthrow of the federal or state governments and that it is not a ‘communist-action’ or ‘communist-front’ organization ‘required by law to be registered with the Attorney General of the United States.’ The deliberate use of the word ‘advocate’ has, in this context, a very narrow meaning. The present statute was adopted by the Legislature subsequent to a decision by the Supreme Court of this State which held unconstitutional a statute prohibiting the use of school property by any person or group having as its ‘object’ the overthrow, or the ‘advocacy’ of the overthrow, of the federal or state governments by violence. Danskin v. San Diego Unified School District, 28 Cal.2d 536, 171 P.2d 885. The court viewed the term ‘advocacy’ in its broad sense; i. e., the mere expression of political philosophy and doctrines in the public forum. We must assume that section 16564 and 16565 were deliberately formulated to comply with the pronouncements and holding of the court in the Danskin case. With this in mind, we must determine the meaning which the term ‘advocate’ has acquired since the year 1946 when the Danskin case was decided.
‘Advocacy’ is no longer a general term meaning dissemination of doctrines and philosophical concepts in the market place of ideas. It has become a word of art with a narrow and strictly confined meaning when used in relation to the proscription of subversive and revolutionary activities. The case of Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1077, 1 L.Ed.2d 1356, decided in 1957, is apposite. Mr. Justice Harlan, speaking for the majority, in construing the term ‘advocate’ as deliberately used by Congress in the Smith Act, stated: ‘* * * our first duty is to construe this statute [18 U.S.C. §§ 371, 2385]. In doing so we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked, or that it used the words ‘advocate’ and ‘teach’ in their ordinary dictionary meanings when they had already been construed as terms of art carrying a special and limited connotation. (Citation.) * * * beyond all question * * * Congress was aware of the distinction between advocacy or teaching of abstract doctrine and the advocacy or teaching of action, and * * * it did not intend to disregard it. The statute was aimed at the advocacy and teaching of concrete action for the forcible overthrow of the Government, and not of principles divorced from action.' 354 U.S. at pages 319, 320, 77 S.Ct. at pages 1077. (Emphasis added.) See also Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, wherein ‘advocacy’ and ‘discussion’ were similarly distinguished.
Therefore, we hold that the term ‘advocate the overthrow of the Government’ in the ‘statement of Information’ was deliberately used by the Legislature in the narrow sense defined so explicitly in the Yates case. The Legislature may not be assumed to have enacted a useless and unconstitutional provision in the face of the peremptory commands of the Danskin decision. Thus, the purposes of section 16564 are properly served by this portion of the ‘Statement of Information,’ in that an organization which advocates the overthrow of the Government is an organization which is very likely to commit acts toward that end.
The last part of the second paragraph of the ‘Statement of Information’ refers to ‘communist-front’ and ‘communist-action’ organizations required to register with the Attorney General of the United States. Again this information implements the intent and purpose of section 16564. The sole interest of the school board is to determine in advance whether acts of subversion will or will not be committed on school premises by the applicant in question. If the applicant is a ‘communist-front’ or ‘communist-action’ organization, the likelihood of such a group committing acts tending to further its own interests is substantial. Furthermore, ‘it has been established by legislative findings and judicial decisions that the Communist Party is a continuing conspiracy against our government. (Citations.)’ Board of Education etc. v. Mass, 1956, 47 Cal.2d 494, 497–498, 304 P.2d 1015, 1018. And the legislature has declared that ‘communism is a political theory that the presently existing form of government of the United States or of this State shall be changed, by force, violence or other unconstitutional means, to a totalitarian dictatorship1 * * *.’ Education Code, § 8275, enacted 1951.2
It is eminently clear that any communist group would be within the proscribed class as defined by section 16565. Such information is therefore vital to a determination by the school board as to whether or not the intended use of school property will be in violation of section 16564.
Petitioners first contend that the ‘Statement of Information,’ required of all applicants who desire to make use of public school property, is an unconstitutional infringement of their rights of free speech and assembly under the First Amendment to the Constitution of the United States and as guaranteed by the California Constitution. They rely principally upon Danskin v. San Diego Unified School District, supra.
The statute held unconstitutional in the Danskin case (Education Code, § 19432, St. 1945, p. 2301) read as follows: ‘Any use, by any individual, society, group, or organization which has as its object or as one of its objects, or is affiliated with any group, society, or organization which has as its object or one of its objects the overthrow or the advocacy of the overthrow of the present form of government of the United States or of the State by force, violence, or other unlawful means shall not be granted, permitted, or suffered.
‘Any person who is affiliated with any organization, which advocates or has for its object or one of its objects the overthrow of the present government of the United States or any State, Territory, or Possession thereof, by force or violence or other unlawful means, or any organization of persons which advocates or has for its object or one of its objects the overthrow of the present government of the United States or any State, Territory, or Possession thereof, by force or violence or other unlawful means, is hereby declared to be and is characterized, a subversive element.
‘Notwithstanding any of the other terms of this chapter, no such governing board shall grant the use of any school property to any person or organization who or which is a subversive element as herein defined.
‘For the purpose of determination by such governing board whether or not such person or such organization of persons applying for the use of such school property, is a subversive element as herein defined, such governing board may require the making and delivery to such governing board, by such person or any members of such organization, of affidavits in form prescribed by such governing board, stating facts showing whether or not such person or organization is a subversive element as herein defined.
‘Reference is hereby made to the provision of law relating to perjury and the punishment therefor shall be applicable to persons making and delivering affidavits provided for under the provision of this chapter.’
In compliance with the above, the San Diego School Board required the petitioners to subscribe to the following oath:
‘I, * * *, being first duly sworn, on oath say:
‘I am a member of the San Diego Civil Liberties Committee affiliated with the Southern California Branch of the American Civil Liberties Union and one of the applicants for the use of Roosevelt Junior High School auditorium for a series of meetings on January 25th, February 22nd, March 22nd, April 26th, May 24th, and June 28, 1946.
‘I do not advocate and I am not affiliated with any organization which advocates or has as its object or one of its objects the overthrow of the present Government of the United States or of any State by force or violence, or other unlawful means.’ The validity of the oath requirement was held to depend upon the validity of section 19432 of the Education Code. The court held that section 19432 was invalid on its face as being in violation of the First and Fourteenth Amendments of the Constitution of the United States and of the guarantees of freedom of speech and assembly in the Constitution of California.
The ultimate reason for striking down this statute was the Supreme Court's view that it made ‘convictions and affiliations a condition of free speech’ and that such a restriction ‘is striking at something less than clear and present danger.’ 28 Cal.2d 544, 171 P.2d 890. Two distinctions between the Danskin case and the instant situation are immediately apparent. In Danskin, the statute involved only beliefs and convictions, not acts as in present sections 16564 and 16565. Moreover, there has been a substantial change in the rule of ‘clear and present danger’ as that phrase has since been interpreted and applied by the Supreme Court of the United States.
We first consider the requirement of the present statute that the use of public school buildings be denied to those individuals and groups which contemplate acts of subversion or acts intended to further the purposes of subversive orgaizations. This language contemplates more than mere ‘prediction that is not calculated or intended to be presently acted upon, thus leaving opportunity for general discussion and the calm processes of thought and reason.’ Schneiderman v. United States, 320 U.S. 118, 157–158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796, quoted with approval in Danskin v. San Diego Unified School District, supra. Nor does the statute here under consideration ‘compel ‘subversive elements' directly to renounce their convictions and affiliations' (Danskin v. San Diego Unified School District, supra, 28 Cal.2d at page 546, 171 P.2d at page 891) or abridge ‘the ancient right to free speech’ by denying ‘access to a forum in a school building to ‘subversive elements' * * * because [the legislature] believes the privilege of free assembly in a school building should be denied to those whose convictions and affiliations it does not tolerate.’ 28 Cal.2d at page 545, 171 P.2d at page 891.
On the contrary, this statute denies access to school property to those who would use the property as a place in which to commit acts of subversion or treason or acts tending to further the cause of subversion and treason by direct support to organizations having such results as their principal object. An ‘act’ as opposed to an academic argument creates the crucial difference between the present sections and the one held unconstitutional in the Danskin case. Argument may be countered by argument but an act is an accomplished fact. An act by definition is the application of force which accomplishes a result, though it may fall short of its intended objective. Obviously, the legislature is concerned with the results of acts of subversion for therein lies the threat to our free, democratic society. ‘The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.’ DeJonge v. State of Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278. (Emphasis added.) Moreover, ‘there is a material difference between agitation and exhortation calling for present violent action * * * and mere doctrinal justification or prediction of the use of force under hypothetical conditions at some indefinite future time.’ Schneiderman v, United States, supra, 320 U.S. at page 157, 63 S.Ct. at page 1352. A fortiori, if, instead of speech intended to incite rebellion and treason (which would be one of the acts proscribed by the statute) the applicant intended to commit other overt acts of subversion or acts intended to further subversive interests, the intended use could not be entitled to the protection of the constitutional freedoms.
Thus the distinction in this regard between the Danskin case and the instant matter is clear. The prior statute forbade the use of schools to ‘subversive elements' even though the assembly was to be lawfully conducted and no acts of subversion were contemplated. Under the present statute, only acts are proscribed.
The second distinguishing feature between this case and the Danskin decision [28 Cal.2d 544, 171 P.2d 890] is the marked change in the ‘clear and present danger’ doctrine (originally enunciated in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470). Our Supreme Court relied principally on the holding of the United States Supreme Court in Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 193, 86 L.Ed. 192, in determining that the statute in the Danskin case forbade activities which did not constitute a ‘clear and present danger’ of bringing about ‘substantive evils.’ The Bridges court, quoting from Chief Justice Holmes' dissent in Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 said: “We should be eternally vigilant against attempts to check the expression of opinions that we loath and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” Again, the Bridges court quoted Mr. Justice Brandeis' dissent in Whitney v. People of State of California, 274 U.S. 357, 376, 47 S.Ct. 641, 71 L.Ed. 1095: “To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent.” (Emphasis the Supreme Court's.) The key word in these quotations is the word ‘imminent.’ The reasoning seems to be that no action abridging the free speech of subversive groups may be taken until the revolution has been planned and the moment to strike is awaited by armed terrorists. Until that moment, the danger is not an imminent one; and there is still a chance that the terrorists and the revolutionists will have a change of heart because they have participated in a free exchange of ideas in the public forum.
The impracticability of this notion is beyond comprehension and is reminiscent of the disaster at Pearl Harbor and the infiltration and ultimate subjugation of the Eastern European countries by the communists since World War II. Fortunately, the Bridges definition of ‘clear and present danger’ is not in harmony with the more recent decisions. The modern interpretation is found in American Communications Ass'n C. I. O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, and Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.
In the Douds case, the court held constitutional section 9(h) of the Labor Management Relations Act (29 U.S.C.A. § 159(h), which, as a condition of a labor union's utilizing the privileges afforded by the act, requires its officers to file a non-communist affidavit with the National Labor Relations Board. The court held that ‘political strikes' were the substantive evil at which section 9(h) was aimed and that such strikes were a legitimate interest of Congress under the Commerce Power. Discussing the question of whether or not the possibility of political strikes called by communist labor leaders constitutes a ‘clear and present danger,’ the court said: ‘The Board does not contend that political strikes, the substantive evil at which section 9(h) is aimed, are the present or impending products of advocacy of the doctrines of communism or the expression of belief in overthrow of Government by force. On the contrary, it points out that such strikes are called by persons who, so Congress has found, have the will and power to do so without advocacy [emphasis the court's] or persuasion that seeks acceptance in the competition of the market. Speech may be fought with speech. Falsehoods and fallacies must be exposed, not suppressed, unless there is not sufficient time to avert the evil consequences of noxious doctrine by argument and education. * * * But force may and must be met with force. Section 9(h) is designed to protect the public not against what Communists and others identified therein advocate or believe, but against what Congress has concluded they have done and are likely to do again.’ 339 U.S. at page 396, 70 S.ct. at page 682. (Emphasis ours except where indicated.) The petitioner argued, however, that the court must find a clear and present danger to the security of the nation or of widespread industrial strife in order to sustain section 9(h). In answer to this contention, the court said, 339 U.S. at page 397, 70 S.Ct. at page 683: ‘[Since the Schenck case] this court has decided that however great the likelihood that a substantive evil will result, restrictions on speech and press cannot be sustained unless the evil itself is ‘substantial’ and ‘relatively serious,’ (citation), or sometimes ‘extremely serious.’ (Citation.) * * * But in suggesting that the substantive evil must be serious and substantial, it was never the intention of this Court to lay down an absolutist test measured in terms of danger to the Nation. When the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity.' (Emphasis added.) In considering recent cases involving application of the doctrine, the court said: ‘And recent cases in this Court involving contempt by publication likewise have no meaning if imminent danger of national peril is the criterion.’ 339 U.S. at page 398, 70 S.Ct. at page 683. (Emphasis added.)
The present rule or ‘test’ is enunciated in the Dennis case. The court recognized that the validity of the Smith Act depended upon the meaning of the phrase ‘clear and present danger.’ ‘Obviously, the words [clear and present danger] cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. * * * Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The danger which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt.’ 341 U.S. at page 509, 71 S.Ct. at page 867. (Emphasis added.) Since ‘imminent’ peril or ‘immediacy of a successful attempt’ is not the proper criterion to apply, the court enunciated the real test, using the language of Judge Learned Hand in United States v. Dennis, et al., 2 Cir., 183 F.2d 201, at page 212: “In each case [courts] must ask whether the gravity of the ‘evil’, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' (Citation.) We adopt this statement of the rule.' 341 U.S. at page 510, 71 S.Ct. at page 868.
We are therefore required to proceed to a determination of whether or not a ‘clear and present danger’ exists against which the legislature of this state has the right, duty and power to protect the citizens of this state, even though certain rights of free speech and assembly may be thereby impinged, and whether sections 16564 and 16565 of the Education Code accomplish this end in a legitimate manner. We must first determine the relative importance of the rights to be protected; on the one hand, the gravity of the evil against which protection is sought, and on the other hand, the scope of the restrictions on speech and assembly which the present statute seeks to impose. If the danger is great and the restriction of constitutional freedom is slight, the probability of the occurrence of the substantive evil is not a substantial factor. This is the principle of the Douds case. However, if the restricted rights involve a large segment of the citizenry or seriously impair the rights of a few, we must apply the rule in the Dennis case; i.e., ‘the gravity of the ‘evil,’ discounted by its improbability.' In no event are we required to find an ‘imminent’ or impending peril in order to find the existence of a ‘clear and present danger.’ The Danskin court, on the other hand, applied the ‘imminency’ test in reaching its decision for that was the rule in 1946, before the Douds case in 1949 and the Dennis case in 1950. For this further reason, the Danskin case is not controlling in the present controversy.
We have concluded that under the rule of either the Douds or Dennis cases, the statute in question protects against a ‘clear and present danger’ and that infringements of free speech and assembly flowing from its application are therefore proper and do not render it unconstitutional. Applying the Douds rule to the challenged sections, the immediate question is: What evil is sought to be abated? The answer is simple. The legislature, through this statute, seeks to protect the people of this state from the commission in public school buildings of acts of subversion or acts intended to support subversive elements. An act of subversion is, in and of itself, an ‘evil’ of a ‘substantive’ or ‘grave’ nature, and acts intended to support subversive elements are no less ‘evil.’ That the public school buildings of this state should be used as the spawning ground of violence and terrorism is repugnant to every ideal of freedom-loving people. It is the antithesis of the democratic principles which our public schools are designed to foster and perpetuate.
Conversely, the only rights of free speech and assembly which are denied by this statute are denied to those persons or groups which intend to use our school buildings for the proscribed acts and only incidentally for the promulgation of ideas. The controlling fact is that such subversive elements, especially the communists, have been found by the legislature to have as their primary purpose, the violent overthrow of our form of government and the eventual subjugation of the people of this State and Nation to the will of the Kremlin. The grave danger that acts of subversion or acts calculated to support subversive elements will be committed by communists and others of like ilk, leads inescapably to the conclusion that they must be barred from the use of school property in order to guarantee that the schools will not be used as a convenient ‘community center’ of subversive activity.
Thus the total effect of the statute is to bar the doors of our schools to those who would subvert our liberties. The restriction is slight and the danger grave. Thus, under the Douds case, the clear and present danger test has been successfully met by this legislation.
We next consider the challenged statute in the light of the rule of ‘clear and present danger’ laid down in the Dennis case. As the rule is paraphrased by our Supreme Court in Katzev v. County of Los Angeles, 52 Cal.2d 360, 366, 341 P.2d 310, 314, we must determine ‘whether the gravity of any such ‘evil’ discounted by its improbability, ‘justifies' invasion of freedom of speech in order to avoid the ‘danger.”
The substantive evil at which the statute is aimed is acts; acts or subversion or acts intended to further subversive interests, committed within public school buildings. That such acts constitute the highest order of threat to our free society is obvious. Moreover, the fact that an organization intends to commit such acts makes the likelihood of their occurrence a near certainty. Thus the test of the Dennis case is thoroughly satisfied; a grave evil which is almost certain to occur but for the prohibitions of the statute.
The provisions of the ‘Statement of Information’ clearly implement the objectives of the statute within the constitutional limitations of the ‘clear and present danger’ doctrine. If an organization intends to commit the proscribed acts, advocates the overthrow of the government or is required by law to be registered with the Attorney General of the United States, it is highly probable that such organization will commit the proscribed acts. Petitioners argue, however, that the mere requirement of registration with the Attorney General is not sufficient to raise such a probability. The answer to this contention is found in the registration statute itself. Internal Security Act of 1950, 64 Stat. 987, 50 U.S.C.A. §§ 781–798. This statute requires the registration of all ‘communist-front’ or ‘communist-action’ organizations with the Attorney General of the United States. 50 U.S.C.A. § 786. A ‘communist-action’ organization is defined as one ‘which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement * * * and operates primarily to advance the objectives of such world Communist movement * * *.’ 50 U.S.C.A. § 782. A ‘communist-front’ organization is one ‘which (A) is substantially directed, dominated, or controlled by a Communist-action organization, and (B) is primarily operated for the purpose of giving aid and support to a Communist-action organization, a Communist foreign government, or the world Communist movement * * *.’ 50 U.S.C.A. § 782.
The objectives and practices of world Communism are disclosed and found as facts in 50 U.S.C.A. § 781 and in The Communist Control Act of 1954, both quoted in part in the margin, supra, and by our own Legislature in section 1027.5 of the Government Code, also quoted supra in the margin. Thus by definition, a ‘communist-front’ or ‘communist-action’ organization is dedicated to the future overthrow of our government and to the commission, at every opportunity, of acts intended to further such purpose. The relevant fact required to be disclosed by the ‘Statement of Information’ is that hee organization for which application is made is not a ‘communist-front’ or ‘communist-action’ organization required by law to be regiatered with the Attorney General of the United States. The applicant is only required to state, to the best of his knowledge and belief, that the organization does not fall within the definition of a ‘Communistaction’ or ‘Communist-front’ organization established by the Internal Security Act (50 U.S.C.A. § 782, supra). The fact that the organization is or is not so registered is immaterial. The only fact required to be stated is that the organization is not required by law to register, i. e., does not fall within the above definition.
Obviously, a ‘communist-front’ or ‘communist-action’ organization which falls into the above definition, constitutes a direct of affirmative, subversive action. It is clear that the Legislature, in referring to such organizations, considered that they constitute groups dedicated to the violent overthrow of the governments of the State and Nation. No other meaning may be gleaned from the registration statute set out above. A foreign controlled, communist group which has as its object the violent overthrow of our government is, per se, an organization likely to commit acts of subversion or acts intended to further its own subversive interests of the interests of related subversive groups. Therefore, any applicant who cannot truthfully sign the ‘Statement of Information’ presumably represents an organization which is likely to commit the proscribed acts, and it is immaterial whether he cannot truthfully swear to the entire ‘Statement’ or only to a part thereof. All of the required information is vital to an advance determination by the school board as to whether or not the acts will be committed, and the ‘Statement of Information’ is not defective by reason of reference to groups which ‘advocate’ the overthrow of the Government or to ‘communist-front’ and ‘communist-action’ organizations.
Additionally, petitioners urge three further grounds of unconstitutionality with respect to sections 16564 and 16565: (1) That the language of the sections is vague and uncertain; (2) that they conflict with Congressional enactments which occupy the field; and (3) that they violate due process.
As to (1) above, an examination of the challenged sections discloses certain key words and phrases, which, if their meaning is clear, add certainty to the requirements contained therein. In section 16564, the key phrase is ‘act intended to further any program or movement the purpose of which’ is the violent overthrow of the government. The questions are: (1) What is such an ‘act; and (2) Is the meaning of the word ‘act’ sufficiently definite?
We have previously construed the word ‘act’ the mean any act of subversion (which obviously would be intended to further the interests of the subversive elements in our midst) or any act intended to further the interests of subversives. The statute means exactly what it says: any act. We are not required to enumerate the various acts which would fall into this classification for they range from fund raising, through recruiting and advocacy of immediate overthrow of the government, to the distribution of arms and ammunition. If the act furthers the purposes or is intended to further the purposes of subversives, it is proscribed, no matter how innocuous it might be if considered out of context with the major evil at which the statute is aimed. It should be here carefully noted that we are not passing on the definiteness or certainty of section 16564 insofar as that section constitutes a criminal sanction. The second paragraph makes the commission of the proscribed acts a misdemeanor but it is not before us on this petition, and we are thus not required to consider its constitutionality.
Thus the word ‘act’ as found in section 16564 has a sufficiently definite meaning and a fortiori, a definite meaning as used in section 16565 in the ‘Statement of Information.’ In the latter section, the ‘Statement’ requires that the applicant state ‘to the best of his rnowledge’: (1) That no ‘act’ (as above defined) will be committed in the public school property; (2) that the organization which he represents does not advocate (as herein explained) the overthrow of the government by force; and (3) that it is not a communist-action or communist-front organization required to be registered with the Attorney General of the United States. The first requested information is in substantially the same language as section 16564 and is sufficiently definite. The second fact relates to advocacy, and, as we have said, advocacy has acquired a definite meaning, i. e., the inciting of others to immediate action or to action as soon as is practicable. The applicant is thus only required to state that the organization which he represents does not, to the best of his knowledge, advocate the violent overthrow of the government. This, too, is clear. The third required facts relates to communist groups required to be registered with the Attorney General. The provisions requiring such registration are clearly set out in the Federal statute as we have previously pointed out. The applicant is only required to state, in effect, that, if any of the facts called for by the ‘Statement’ apply to his organization or to the use which will be made of the school property, he does not know of such facts of his own knowledge. The meaning of the statute is sufficiently clear to provide a definitive basis upon which the signing member or individual may evaluate the information at his disposal to the end that he may determine whether any of the facts called for apply to his situation.
The Supreme Court of the United States rejected the argument of vagueness in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115. In that case, the petitioner's conviction for contempt of Congress was upheld. The petitioner had refused to answer questions regarding his Communist Party affiliations put to him by a Sub-Committee of the House Committee on Un-American Activities during the course of an inquiry concerning alleged communist infiltration into the education field. The authority of the Sub-Committee was challenged on the ground that the investigative authority conferred on the Sub-Committee by Congress was vague and uncertain. The authority was granted by Rule XI, paragraph 17(b), H.Res. 5, 83 Cong., 1st sess. 99 Cong.Rec. 15, 18, 24, which reads: ‘The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (1) the extent, character, and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation to acts that would aid Congress in any necessary remedial legislation.’ (Emphasis added.)
It would be hard to imagine a more general authority or one more lacking in definitive statements. Yet the Supreme Court held that it was sufficiently definite to allow the Sub-Committee to investigate communist activities in education and, in particular, to question the petitioner (a teacher) about his own affiliations and to sustain a conviction for contempt for his failure to answer. The holding is based upin the long answer. The holding is based upon the long and upon the rule that a legislative act need not be construed strictly and as it reads if it is accompanied by a ‘pervasive gloss of legislative history.’ Precisely the same point is involved in the present case. Too much legislative and judicial water has passed under the bridge for us to hold that any applicant who desired to make use of school buildings would not be fully aware of the meaning of the questions posed by the ‘Statement of Information.’ We have but given judicial life to the already established concepts with which the challenged statute deals. The statute, for the purposes here under consideration, is not, therefore, unconstitutional for vagueness or uncertainty. See American Communications Ass'n, C. I. O. v. Douds, 339 U.S. 382, 413, 70 S.Ct. 674, 94 L.Ed. 925.
The second contention of petitioners, viz., that the statute conflicts with Federal legislation that occupies the field, is also without merit. They cite Common-wealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, to support this contention, but this case is not in point. It dealt with the conflict between the Federal Smith Act (18 U.S.C. § 2385) and the Pennsylvania Sedition Act, 18 P.S. § 4207. Both statutes made knowing advocacy of the overthrow of the government by force or violence a crime. The United States Supreme Court ruled that Congress had occupied the field with the Smith Act and that the Pennsylvania act was therefore in direct conflict with Federal legislation and was unconstitutional. No parallel situation is involved here.
Furthermore, the Nelson case must be limited to its precise holding. As stated in Uphaus v. Wyman, 360 U.S. 72, at page 76, 79 S.Ct. 1040. 3 L.Ed.2d 1090: ‘The basis of Nelson thus rejects the notion that it stripped the States of the right to protect themselves. All the opinion proscribed was a race between federal and state prosecutors to the courthouse door. * * * Nor did our opinion in Nelson hold that the Smith Act had proscribed state activity in protection of itself either from actual or threatened ‘sabotage or attempted violence of all kinds.’' (Emphasis added.)
Initially it should be noted that the present statute does not purport to relate to any but acts committed within the public school buildings of this State. It is designed solely for the purpose of the regulation of the use of such buildings. No applicable Federal legislation on this subject has ever been passed. Thus there is no apparent direct conflict with any Federal statute and Congress has not occupied the field. The reference to ‘communist-front and communistaction organizations required by law to be registered with the Attorney General of the United States' is likewise not in conflict with Federal legislation. The only purpose for the inclusion of this phrase is to impart to the school board the information it must have in order to determine in advance whether or not proscribed acts will be committed. No further application of this information is intended or permitted by the statute. Thus, the fact, without more, that such registration is required by a Federal statute is not enough to show any direct conflict. First Unitarian Church of Los Angeles v. County of Los Angeles, 48 Cal.2d 419, 311 P.2d 508, reversed on other grounds, 357 U.S. 545, 78 S.Ct. 1350, 2 L.Ed.2d 1484.
The last contention of petitioners referred to above is that the statute violates due process. In this connection petitioners argue that the ‘Statement of Information’ shifts the burden of proof to the applicant by requiring him to protest his innocence before being allowed to exercise an otherwise available right to the use of school property; that is, that the statute assesses a penalty without due process of law, in that no proof on the unfitness of applicant by the Board is required before he is forced to prove his own innocence. The penalty would, presumably, be the depriving of the applicant of the use of school property. Petitioners rely principally on Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460. The Speiser case concerned the constitutionality of a California statute (Rev. & Tax.Code, § 32) which implemented the provision in the California Constitution (Art. 20, § 19) that a tax exemption be denied to all persons who advocate the unlawful overthrow of the government. The statute required that an applicant for a tax exemption sign a statement on his tax return that he does not advocate the unlawful overthrow of the government. The court found this statute to be unconstitutional because it restricted the taxpayer's ireedom of speech without the procedural safeguards required by the due process clause of the Fourteenth Amendment by placing the burden of proof and persuasion of nonengagement in the proscribed advocacy on the applicant. The court viewed the withholding of a tax exemption as a ‘penalty’ (in the nature of a criminal sanction) on speech; i. e., speech advocating the overthrow of the government, which is proscribed as a criminal activity and, as such, held that the State must bear the burden of proving that the taxpayer had in fact engaged in such activity before denying the exemption. However, as we have pointed out, the statute involved in the present case has as its purpose the achievement of an objective other than restraint on speech. In this respect, the present statute is more like the statute in the Douds case than the tax exemption statute in the Speiser case. In the Douds case, the requirement of the oath by union officers that they did not advocate the overthrow of the government was upheld even though the initial burden of proof was upon them. The Speiser court expressly recognized the essential distinction which also applies here; that is, where free speech is only incidentally restricted by a statute, and where the real objective is something other than such restriction, the burden of going forward with the proof of non-advocacy may constitutionally be placed (initially) on the individual. In distinguishing the Douds case, the Speiser court held: ‘While the [Douds] Court recognized that the necessary effect of the legislation was to discourage the exercise of rights protected by the First Amendment, this consequence was said to be only indirect. The Congressional purpose was to achieve an objective other than restraint on speech. Only the method of achieving this end touched on protected rights and that only tangentially.’ 357 U.S. 513, 527, 78 S.Ct. 1343. (Emphasis added.)
Thus, the Speiser case is not here controlling. No restraint on speech or assembly, as such, is sought by the statute in question. The real objective is the protection of our public schools from the commission of subversive acts therein. Only ‘tangentially’ does the statute restrict speech and assembly. There is, therefore, no violation of due process in the application of the challenged statute as it now stands.
We have decided that sections 16564 and 16565 of the Education Code are constitutional and that petitioners herein are required to submit the ‘Statement of Information’ to the school board before that agency may permit them to make use of public school facilities. In arriving at this conclusion we have not been unmindful of the great importance which all courts must attach to First Amendment rights. We fully agree that the courts must zealously protect the personal right of free speech for we believe that ‘free discussion contains the germ of progress which keeps flowing the blood stream of the Republic.’ In re Lyons, 27 Cal.App.2d 293, 296, 81 P.2d 190, 192. And when the State undertakes to restrain unlawful acts, where, in so doing, it also restricts in some degree free speech and assembly, ‘only considerations of the greatest urgency can justify [the] restrictions.’ Speiser v. Randall, supra, 357 U.S. at page 521, 78 S.Ct. at page 1339. But the validity of the restraint on speech and assembly in each case depends upon a careful analysis of the particular circumstances. Dennis v. United States, supra.
Courts may not blind themselves to reality nor are they justified in shrinking from shadows. In this case we are faced with the stark reality of active subversive elements operating at our very doorstep; working diligently and tirelessly in fanatic devotion to the dictates of our enemies. Through our Legislature, the people of our State have declared and ordained that these self-same subversives shall not have access to the public school buildings of the State for the commission of acts of subversion. If this is not a just and proper exercise of free government, then we are indeed helpless as a State and as a Nation. We cannot and shall not brand this legislative mandate as ‘unconstitutional.’ To do so might appease those among us who still believe that terrorists and revolutionaries should be allowed free rein in the public domain until such time as the first shot is fired, but this myopic idealism can lead only to ultimate disaster. We believe, with the court in Dennis, that: ‘overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.’ 341 U.S. at page 509, 71 S.Ct. at page 867. Thus, viewing this mild legislation by which the Legislature has attempted, by the only means at its disposal, to protect our public schools from use by subversives or their fellow-travelers for the commission of acts of subversion or acts supporting subversion, we must conclude that, if the State cannot go at least this far in protecting its own interests, it is powerless to act in any effective manner. This legislation is a proper and necessary exercise of the Legislature's power in the fight against those who would destroy for all time those great principles which inure to us through our Federal and State Constitutions.
The further point raised by petitioners concerning the discretionary 30-day application requirement of the respondent Board may not be here considered since the petitioners have heretofore failed to perfect their applications by filing the required ‘Statement of Information.’
The alternative writ is discharged, and the petition is denied.
1. The Legislature of this State made the following finding in 1953 with respect to the world communism movement: ‘(a) There exists a world-wide revolutionary movement to establish a totalitarian dictatorship based upon force and violence rather than upon law. ‘(b) This world-wide revolutionary movement is predicated upon and it is designed and intended to carry into execution the basic precepts of communism as expounded by Marx, Lenin, and Stalin. ‘(c) Pursuant to the objectives of the world communism movement, in numerous foreign countries the legally constituted governments have been overthrown and totalitarian dictatorships established therein against the will of the people, and the establishment of similar dictatorships in other countries is imminently threatening. The successful establishment of totalitarian dictatorships has consistently been aided, accompanied, or accomplished by repeated acts of treachery, deceit, teaching of false doctrines, teaching untruth, together with organized confusion, insubordination, and disloyalty, fostered, directed, instigated, or employed by communist organizations and their members in such countries. ‘(d) Within the boundaries of the State of California there are active disciplined communist organizations presently functioning for the primary purpose of advancing the objectives of the world communism movement, which organizations promulgate, advocate, and adhere to the precepts and the principles and doctrines of the world communism movement. These communist organizations are characterized by identification of their programs, policies, and objectives with those of the world communism movement, and they regularly and consistently cooperate with and endeavor to carry into execution programs, policies and objectives substantially identical to programs, policies, and objectives of such world communism movement. ‘(e) One of the objectives of the world communist movement is to place its members in state and local government positions and in state supported educational institutions. If this objective is successful, propaganda can be disseminated by the members of these organizations among pupils and students by those members who would have the opportunity to teach them and to whom, as teachers, they would look for guidance, authority, and leadership. The members of such groups would use their positions to advocate and teach their doctrines and teach the prescribed Communist Party line group dogma or doctrine without regard to truth or free inquiry. This type of propaganda is sufficiently subtle to escape detection. ‘There is a clear and present danger, which the Legislature of the State of California finds is great and imminent, that in order to advance the program, policies and objectives of the world communism movement, communist organizations in the State of California and their members will engage in concerted effort to hamper, restrict, interfere with, impede, or nullify the efforts of the State and the public agencies of the State to comply with and enforce the laws of the State of California and their members will infiltrate and seek employment by the State and its public agencies.’ Gov't. Code, § 1027.5. ‘The Congress of the United States, in adopting the Internal Security Act of 1950, declared the dangers of the Communist movement in the following terms (Act of Sept. 23, 1950, ch. 1024, tit. I, § 2, 64 Stats. 987; 50 U.S.C.A. § 781): ‘As a result of evidence adduced before various committees of the Senate and House of Representatives, the Congress finds that—— ‘(1) There exists a world Communist movement which in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.’ More recently, in adopting the Communist Control Act of 1954 (Public Law 637, ch. 886), 50 U.S.C.A. § 841, our Congress expressed its awareness of the true nature of the Communist Party program and methods in the following findings: Sec. 2. ‘The Congress finds and declares that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States. * * *’ and ‘The Communist Party is relatively small numerically, and gives scant indication of capacity ever to attain its ends by lawful political means. The peril inherent in its operation arises not from its numbers, but from its failure to acknowledge any limitation as to the nature of its activities, and its dedication to the proposition that the present constitutional Government of the United States ultimately must be brought to ruin by any available means, including resort to force and violence. Holding that doctrine, its role as the agency of a hostile foreign power renders its existence a clear present and continuing danger to the security of the United States.’
2. Now Education Code, § 8455.
FOX, Presiding Justice.
ASHBURN, J., and KINCAID, J. pro tem., concur.