Untitled Texas Attorney General Opinion ( 1957 )

Honorable Wardlow Lane, Chairman
State Affairs Committee
Texas Senate
Aust In, Texas Opinion No. WW-140
HE: Constitutionality of
House Bill No. 239
Dear Senator Lane:
Your letter dated May 7, 1957, and received in this
office on May lOth, requests an opinion as to the constitutlon-
alitg of House Bill No. 239 now pending before the State
Affairs Committee of the Senate.
The caption of said Bill recites a purpose “to promote
Interracial harmony and tranquility and to that end to declare
It to be the public policy of the State that the right of all
people to be secure from interracial tension and unrest is
vital to the health, safety and welfare of the State”. Sec-
tion 1 of the Bill recites that it is “the duty of the govern-
ment of the State to exercise all available means and every
power at Its command to prevent the same so as to protect its
citizens from any dangers, perils and violence whFch would
result from interracial tension and unrest and possible vlola-
tlons of the laws of Texas”.
Section 2 of the Act requires registration with the
Secretary of State of “every person, firm, partnership, corpora-
tion or association, whether by or through its agents, servants,
employees, officers, or voluntary workers or associates who or
which :
1. Engages as one of its principal functions or actl-
vlties the advocating of racial inter&ration or segregation, or
2. Whose activities opposing or favoring segregation
of races cause or tend to cause racial conflicts or violence, or
3. Who or which Is engaged or engages in raising or
expending funds for the employment of counsel or payment of
costs in connection with litigation in behalf of racial integra-
tion color; (Emphasis added).
Hon. Wardlow Lane, page 2 (WW-140)
Section 2 further provides:
1,. . .
that nothing herein shall apply to the right
of the people peaceably to assemble and to petition
the government for a redress of grievances, or to an
Individual freely speaking or publishing on his own
behalf in the expression of his o;Jlnion and engaging
in no other activity subject to the provisions hereof
and notacting in concert with other persons.”
Section 3 sets out in detail the information that shall
be supplied with such registration.
Section 4 makes the registration rec@rds on file in the
Secretary of State’s Office open to public inspection.
SectIon 5; .prescrlbes penalties for violation of the
Act.
Section 9 of the Act provides:
“Sec. 9. This Act shall not apply to persons,
firms, partnerships, corporations or associations
who or which carry on such activity or business
solely through the medium of newspapers, periodicals,
magazines or other like means -which are or may be
admitted under United States postal regulatlons as
second-class mail matter In the United States mails
as defined in Title 39, 224, United States Code
Annotated, and/or through radio, television or
facsimile broadcast or wire service operations.
This Act shall also not apply to any person, firm,
partnership, corporation, association, organization
or candidate in any political election campaign, or
to any committee, association, organization or group
of persons acting together because of activities
connected with any polltical campaign.”
Although the Bill in question has been popularly refer-
red to as a so-called “segregation” measure, it is noted that
its provisions, generally, apply alike to those advocating
either “racial segregation” or racial integration”.
We think it clear, despite the presence in both Sec-
tions 2 and 9 of provisions limiting the effects of the Bill
upon freedom of speech and freedom of press, that the Bill in
question places certain restrictions and burdens upon the exer-
cise of these ~I;wobasic freedoms’as guaranteed by both the
State and Federal Constitutions.
Hon. Wardlow Lane, page 3 (WW-140)
The primary question before us Is whether the Bill may
be upheld as a legitimate exercise of the police power of the
State. It is well established in both our State and Federal law
that the constitutional guarantees of freedom cf speech and of
the press do not deprive the State of Its right to enact laws
in the ligitimate exercise of the police powers, and pursuant
to such power, reasonable regulations of speech and press may
be adopted in order to promote, the general welfare, public
health, public safety and order, or morals. 16 C.J.S. 1111,
Sec. 213( 7) . The question with which we are here concerned is
not whether the Legislature has such
means which it has employed conflict ~~;~;:rW;~~hga~~or
wit
Federal Constitutions. Dennis v United States, 1951, 341 U.S.
494.
The general rule with reference to the authority of the
State to restrict freedom of speech and of press, has been
stated as follows:
“The power of the State to abridge freedom
of speech and of the press Is the exception
rather than the rule, and the Legislature may
not, under the guise of the police power, arbi-
trarily or unnecessarily interfere with the
freedom of speech and of the press, nor may the
Legislature prevent the fair use of the opportunity
for free political discussion, to the end that
government may be responsive to the will of the
people and that changes may be effected through
lawful means. A State may not suppress free
communication of views, religious or other, under
the guise of conserving desirable conditions.
. . . The fundamental right to speak cannot be
abridged because other persons ,threaten to stage
a riot or because peace officers believe or are
afraid that breaches of the peace will occur if
rights are exercised. Speakers may not be pro-
hibited from speaking because they may say some-
thing which will lead to disorder.” 16 C.J.S.
1114, Sec. 213(7) and cases there cited.
The case of Ex Parte Meck,el, (Crim. App., 1919) 220
S.W. 81, concerned the constitutional validity of a so-called
“Disloyalty Statute” enacted by the Texas Legislature during
World War I. Transposing the phrases of the Act, the court
stated that the pertinent provisions thereof would read:
“If any person in t.ime of war, in the pre-
sence and hearing of another person . . . use any
- - _
. .
Hon. Wardlow Lane, page 4 (WW-140)
language ~. . . which language . . . is of such
nature ask that in case it is said in the presence
and hearing of a citizen of the United States, it
is reasonably calculated to provoke a breach of
the peace, such person shall be’guilty of a felony,
etc. . . ,”
In declaring the foregoing provisions of the Act as
being violative of the Bill of Rights the court said:
“It seems too clear for discussion further,
that the gravamen of the offense thus crea.ted is
the use of lsnguage of such nature as that in
case it is uttered in the presence of a citizen
of our country it would likely cause a breach of
the peace, and that the terms of said section are
so framed as to penalize one who utters language
of such natI,lre, whether or not same be used under
circumstances or in such presence as to make same
reasonably provocative of a breach of the peace.r
In light of the foregoing authorities, and particularly
in light of the case last above cited by the Texas Court of
Criminal Appeals, let us examine the provisions of Section 2 of
House Bill No. 239. Said section requires the registration of
designated per sons, groups , et c . , in any of three stated con-
tingencies as follows:
1. If the advocacy of racial integration or segregation
constitutes a principal function or activity; or
2. If such actS,vities cause or ---
tend to cause racial
conflicts or violence; or
3. If such persons, firms, etc., are engaged, or
engages, in raising or expending funds for employment of coun-
sel or payment of costs in connection with litigation in behalf
of racial integration color.
It is readily apparent that the first two contingencies,
requiring registration are not limited to such advocacy or
activities as are reasonably calculated to provoke a breach of
the peace but apply to advocshcg~which waEhr;;y a principal
function or activity and sue activities as caused or tended
to cause racial conflicts or violence. 11 as so written
is not 4:imited to such advocacy or activities which are reason-
ably calculated to create the alleged evils which the Bill
seeks to correct or prevent and hence, it cannot be supported
under the police powers of the State. It is not necessary for
_ . . - .
Hon. Wardlow Lane, page 5 (W-140)
us to decide whether the provision could be so revised as to
render same constitutional in all its provisions. American
Federation of Labor'v. Mann, 188 S.W.2d 276.
The provision of Section 2, which provides that those
"who or which is engaged or engages in raising or expending
funds for the employment of counsel or payment of costs in
connection with litigation in behalf of racial integration
color' poses a somewhat different question. The courts have
displayed a more lenient attitude toward those statutes which
require registration by persons, firms or organizations who
or which undertake the public collection of funds or securing
subscriptions. Reasonable registration or identification in
such cases is generally permitted. Communist Party of U.S. v.
Subversive Act. Con. Bd., 223 F. 26 531; Thomas v. Collins,
323 U.S. 516. Apart from the vagueness and uncertainty of
the language used in said provision, it is our view that
same could not be sustained upon the basis of being a reason-
able requirement inasmuch as it applies with equal effect
tounds expended as well as funds collected. Hence, it
would restrict individuals and others named in the expenditure
of purely personal or private funds for a lawful purpose. As
to whether the provision is reasonable and can be sustained
in other respects we do not here decide.
In the interest of brevity we do not undertake a
discussion of other legal questions which arise in connection
with the Bill.
You are, therefore, advised that in our opinion, House
Bill No. 239, for reasons stated, violates both our State and
Federal Constitutions and hence is unconstitutional.
SUMMARY
House Bill 239, violates freedom
of speech and freedom of press as
guaranteed by both our State and
Federal Constitutions and hence is
unconstitutional.
APPROVED: Yours very truly,
OPINION COMMITTEE
James N. Ludlum, Chairman WILL WILSON
Robert 0. Smith Attornejl General ofj Texas
John H. Minton -d-L
W. V. Geppert
J. C. Davis, Jr.
Assistant
REVIEWEDFOR ATTORNEYGENERAL
BY George P. Blackburn
LP:zt