Weaver v. Jordan

BURKE, J.

Defendant appeals from an adverse judgment in a declaratory relief action which attacks as unconstitutional an initiative measure adopted by the electorate at the November 1964 general election, and entitled by its proponents and draftsmen the “Free Television Act” (hereinafter “the Act”). Designated as Proposition 15 on the ballot, the .Act undertakes to ban in California the business of home subscription television. For reasons which will appear, we have concluded that the trial court correctly determined the Act to be invalid as an abridgment of the free speech guaranties of state and federal Constitutions.

The provisions of the Act are set forth in full in the margin.¹ Following its effective date plaintiffs as incorporators tendered to defendant Secretary of State for filing (with the requisite fees) certain articles of incorporation for the formation of a corporation to be named Advanced Tele-Communica-tions, Inc. (hereinafter TC), for the purpose of engaging in the home subscription television business.² Defendant refused to file the articles on the grounds (1) they did not conform to law in that they provided that the proposed corporation was to engage in an unlawful business, and (2) the purposes of the proposed corporation were unlawful in that they are proscribed by the Act. (See Corp. Code, § 300.) Plaintiffs thereupon brought this action for declaratory relief, contending that the Act violates both the federal and state Constitutions.

Defendant answered and moved for judgment on the pleadings, and plaintiffs moved for summary judgment. Defendant’s answer admits the matters already related in this opinion, but for lack of information or belief denies generally further allegations of the complaint which set forth the business plans and intentions of the proposed corporation, that several “theatre subscription businesses” are now operating in California, and that the Act exempts such businesses from its provisions.³ The trial court concluded that the Act abridges both the state and federal constitutional guaranties of free speech. (U.S. Const., Amendments I and XIY; Cal. Const,, art. I, § 9.) Accordingly, plaintiffs’ motion for summary judgment was granted, and defendant’s motion for judgment on the pleadings was denied. From the ensuing judgment declaring the duty of defendant to accept and file the tendered articles of incorporation, this appeal was taken. (Code Civ. Proc., § 437c.)

First Amendment freedoms of press, speech and religion are protected by the due process clause of the Fourteenth Amendment from invasion by state action. (Smith v. California (1959) 361 U.S. 147, 149-150 [80 S.Ct. 215, 4 L.Ed.2d 205, 209]); Near v. Minnesota (1931) 283 U.S. 697, 707 [51 S.Ct. 625, 75 L.Ed. 1357]; People v. Woody (1964) 61 Cal.2d 716, 718 [1] [40 Cal.Rptr. 69, 394 P.2d 813]; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 365 [1a], 366 [4] [341 P.2d 310].) Such rights have a paramount and preferred place in our democratic system, and the “ ‘rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. ’’’ (American Civil Liberties Union v. Board of Education (1961) 55 Cal.2d 167, 178-179 [9-10] [10 Cal.Rptr. 647, 359 P.2d 45, 94 A.L.R.2d 1259], quoting from Thomas v. Collins (1945) 323 U.S. 516, 530 [65 S.Ct. 315, 89 L.Ed. 430].) Accordingly, the courts have declared that any system of prior restraints of expression comes before the courts “ ‘bearing a heavy presumption against its constitutional validity. ’ " (Freedman v. Maryland (1965) 380 U.S. 51, 57-58 [85 S.Ct. 734, 13 L.Ed.2d 649]; Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 70 [83 S.Ct. 631, 9 L.Ed.2d 584].)

The fact that the Act now before us was adopted as an initiative measure by the general electorate does not alter our approach to the claim of First Amendment infirmity. In West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, 638 [63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674], the court pointed out that “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One ⅛ right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. ’ ’ (See also Wallace v. Zinman (1927) 200 Cal. 585, 593 [5] [254 P. 946, 62 A.L.R. 1351].)

Inasmuch as the rights of free speech and press are worthless without an effective means of expression, the guaranty extends to both the content of the communication and the means employed for its dissemination. (Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 284 [5] [29 Cal.Rptr. 1, 379 P.2d 481]; Kovacs v. Cooper (1949) 336 U.S. 77 [69 S.Ct. 448, 93 L.Ed. 513, 10 A.L.R.2d 608]; Saia v. New York (1948) 334 U.S. 558 [68 S.Ct. 1148, 92 L.Ed. 1574].)

Communication by motion picture, by radio and by television falls within the constitutional protection. (Freedman v. Maryland, supra (1965) 380 U.S. 51, 57; Superior Films, Inc. v. Department of Education (1954) 346 U.S. 587 [74 S.Ct. 286, 98 L.Ed. 329]; Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 499-502 [72 S.Ct. 777, 96 L.Ed. 1098]; Public Utilities Com. v. Pollak (1952) 343 U.S. 451, 461-462 [72 S.Ct. 813, 96 L.Ed. 1068]; Baltimore Radio Show v. State (1949) 193 Md. 300, 323 [67 A.2d 497, 507], cert. den. (1949) 338 U.S. 912 [70 S.Ct. 252, 94 L.Ed. 562]; Rumely v. United States (D.C. Cir. 1952) 197 F.2d 166, 177 [90 App. D.C. 382]; American Broadcasting Co. v. United States (D.C.S.D.N.Y. 1953) 110 F.Supp. 374, 389, affd. on other grounds (1954) 347 U.S. 284 [74 S.Ct. 593, 98 L.Ed. 699]; Wrather-Alvarez etc., Inc. v. Hewicker (1957) 147 Cal.App.2d 509, 512 [5] [305 P.2d 236].)

“The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . .” (Italics added.) (Griswold v. Connecticut (1965) 381 U.S. 479, 482 [85 S.Ct. 1678, 14 L.Ed.2d 510]; see also Martin v. Struthers (1943) 319 U.S. 141, 143 [63 S.Ct. 862, 882, 87 L.Ed. 1313]; Marsh v. Alabama (1946) 326 U.S. 501, 505-508 [66 S.Ct. 276, 90 L.Ed. 265]; Grosjean v. American Press Co. (1936) 297 U.S. 233, 250 [56 S.Ct. 444, 80 L.Ed. 660]; Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 907 [1] [31 Cal.Rptr. 800, 383 P.2d 152].) Also encompassed are amusement and entertainment as well as the exposition of ideas. “The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” (Winters v. New York (1948) 333 U.S. 507, 510 [68 S.Ct. 665, 92 L.Ed. 840].)

The Act now at issue purports to totally prohibit home subscription television. We are told that subscription television consists of the origination and transmission of programs to subscribers, that programs may be transmitted either by radiowave (“open circuit”) or cable (“closed circuit”). The Act undertakes to ban both methods of transmission when a charge is made to home viewers (Act, § 3, ante, fn. 1), but does not forbid making a charge therefor when the viewing is by audiences in a theatre. Thus the Act is entirely clear that no one may speak or disseminate ideas to the home through the medium of pay television, and, likewise, that no one in the home may listen to a pay television transmission or receive transmitted ideas or images conveying such ideas over the outlawed medium. The suppression of the proscribed medium as a vehicle of transmission to the home purports to be absolute; it amounts to total censorship, in advance, so far as home viewers are concerned.

The chief and crucial difference between presently existing home television in California, and subscription television, is the method of collecting revenues: with rare exceptions⁴ existing home television collects its revenues from commercial advertisers; subscription television collects its revenues from subscribers. This difference provides the means by which the Act undertakes to effectively prohibit home subscription television, while at the same time imposing no bans against theatre subscription television or against existing home television which derives its financial support from commercial advertisers.⁵

When a restriction of a First Amendment freedom is of such unlimited potential scope it may be imposed only to avoid a “clear and present danger” that a substantive evil will otherwise result which the state has a right to prevent. The weighing of interests which the courts have at times found necessary or appropriate when considering a restriction more narrow in language or in application⁶ may be dispensed with if, as here, the enactment is so broad as to impose a complete ban of expression and communication through a specified medium, in this ease home subscription television.⁷ In the event this court determines that there is such a “clear and present danger” of a substantive evil warranting the suppression of the constitutional guaranty of freedom of speech or press, it will then be necessary that we also determine whether the gravity of any such “evil,” discounted by its improbability, “justifies” invasion of freedom of speech in order to avoid the “danger.” (Katzev v. County of Los Angeles, supra (1959) 52 Cal.2d 360, 366, and cases there cited; see also Dennis v. United States (1951) 341 U.S. 494, 510, 513-514 [71 S.Ct. 857, 95 L.Ed. 1137] ; West Virginia State Board of Education v. Barnette, supra (1943) 319 U.S. 624; American Civil Liberties Union v. Board of Education, supra (1961) 55 Cal.2d 167, 175-176; Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536, 542 [1], 545 [3] [171 P.2d 885].)

In Thomas v. Collins, supra (1945) 323 U.S. 516, 530, the court declares that “the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment . . . gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice. [Citation.]

“For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. . . . Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” (See also American Civil Liberties Union v. Board of Education, supra (1961) 55 Cal.2d 167, 178-179.)

Any suggestion of the existence of a “clear and present danger” to be obviated by the Act here involved would be utterly specious. The Act itself states (in § 2) that the “development” of the subscription television business would have an “adverse effect” upon existing television stations—a proposition which at the very least is debatable. The further declarations of the Act (§2) that subscription television “would tend” to deprive viewers of their “freedom of choice,” and of the “information; instruction and entertainment now readily and freely available to them,” and would “tend” to create a monopoly, likewise appear of uncertain veracity or validity. But even if such declarations be accepted as unquestionable facts, they would demonstrate no clear and present danger of any substantive evil to be avoided by the sweeping and absolute suppression attempted by the Act. Rather, as the trial court commented in its memorandum opinion herein, any suggested “evil” appears to be speculative and illusory, and well discounted by “improbability ’ ’ by the recitals of the Act itself. In the event that one medium of communication and entertainment actually did in part supplant or displace its competitor in the course of exercising protected freedoms of press and speech, that is only the traditional and expected possible consequence of free choice in turn by viewing or listening members of the public of the communications they wish to receive. If monopoly practices appear or if the public interest actually suffers or is ignored it will then be time enough to apply appropriate regulation within constitutionally permissible limits. (See National Broadcasting Co. v. United States (1943) 319 U.S. 190, 226 [63 S.Ct. 997, 87 L.Ed. 1344].) But the outright ban here undertaken by the Act cannot stand. As pointed out in Wollam v. City of Palm Springs, supra (1963) 59 Cal.2d 276, 284 [7], “the right to regulate [a means of communication] does not necessarily sanction the outright prohibition.”⁸ And as stated in Shelton v. Tucker (1960) 364 U.S. 479, 488 [81 S.Ct. 247, 5 L.Ed.2d 231], “even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly' stifle fundamental personal liberties when the end can be more narrowly achieved. ’ ’⁹

Further, the freedoms of speech and of press protected by the First Amendment rest on “the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.” (Associated Press v. United States (1945) 326 U.S. 1, 20 [65 S.Ct. 1416, 89 L.Ed. 2013] ; see also Griswold v. Connecticut, supra (1965) 381 U.S. 479, 482.)

The assertion of defendant and of amici curiae that the Act does not invade freedom of expression because it does not prohibit subscription television, but merely forbids direct charges for programs transmitted to the home, is devoid of substance. The trial court correctly observed that “This is comparable to asserting that no prohibition of expression would exist in the case of newspapers or motion pictures if a statute were adopted requiring their distribution or showing without charge. ’ ’ When expression protected by the First Amendment is involved, “It is of course no matter that the dissemination takes place under commercial auspices.” (Smith v. California, supra (1959) 361 U.S. 147, 150.)¹⁰ In New York Times Co. v. Sullivan (1964) 376 U.S. 254, 265-266 [84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412], it was recently held that a publication which communicates information, expresses opinion, recites grievances, and protests claimed abuses, is not removed from the protection of free speech and press guaranties by the fact that it appears as a paid advertisement in a newspaper. The court there declared “That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold [citations].” (Cf. Breard v. City of Alexandria, supra (1951) 341 U.S. 622, 642; Joseph Burstyn, Inc. v. Wilson, supra (1952) 343 U.S. 495, 501-502; Bantam Books, Inc. v. Sullivan, supra (1963) 372 U.S. 58, 64, fn. 6; see also 53 Cal.L.Rev. 1418-1425.)¹¹

Our holding that no basis has been shown or suggested which would warrant the sweeping restriction here attempted by the Act is not, of course, repugnant to the accepted principle that the practices or business of the various media of expression or of those disseminating their beliefs or ideas may be regulated or taxed in a reasonable and nondiscriminatory manner.¹² Thus the antitrust proscriptions of the Sherman Act were held applicable to newspapers, with the comment by the court that “Freedom to publish means freedom for all and not for some, ’ ’ a comment also appropriate in the instant case. (Associated Press v. United States, supra (1945) 326 U.S. 1, 7, 19-20; see also Lorain Journal Co. v. United States (1951) 342 U.S. 143 [72 S.Ct. 181, 96 L.Ed. 162].) The Fair Labor Standards Act and the National Labor Relations Act have likewise been applied to the newspaper business. (Oklahoma Press Pub. Co. v. Walling (1946) 327 U.S. 186, 192-193 [66 S.Ct. 494, 90 L.Ed. 614, 166 A.L.R. 531] ; Mabee v. White Plains Pub. Co. (1946) 327 U.S. 178, 184 [66 S.Ct. 511, 90 L.Ed. 607] ; Associated Press v. National Labor Relations Board (1937) 301 U.S. 103, 130 [37 S.Ct. 650, 81 L.Ed. 953].) In Kovacs v. Cooper, supra (1949) 336 U.S. 77, an ordinance was sustained which barred sound trucks from broadcasting in a loud and raucous manner on the streets.¹³

And in Breard v. City of Alexandria, supra (1951) 341 U.S. 622, a local ordinance denominating a nuisance and prohibiting door-to-door solicitation of orders for goods, without previous request by the occupant of the home, was sustained against First Amendment attack as applied to one selling magazines. By contrast, in Martin v. Struthers, supra (1943) 319 U.S. 141, 142, an ordinance which made it “unlawful for any person distributing handbills, circulars or other advertisements to ring the door bell, sound the door knocker, or otherwise summon” householders to their door “for the purpose of receiving” such material, was held invalid as applied to one distributing advertisements for a religious meeting. The holdings of Breard and Struth-ers are particularly apt in pointing up the infirmity of the Act now before us. That Act attempts, absolutely and completely, to deprive householders of the right to receive communications from home subscription television (Struthers), whereas under no circumstances does it appear that such communications could intrude into their homes absent their request via a subscription (Breará).

Grosjean v. American Press Co., supra (1936) 297 U.S. 233, likewise lends support to the views we have expressed with respect to the Act. In Grosjean a statute which imposed a 2 percent tax upon the gross receipts of newspapers making a “charge” for advertising and having a circulation of over 20,000 copies per week, was held to be an unconstitutional impairment of First Amendment rights. The court reasoned that the statute was “a deliberate and calculated device in the guise of a tax” which had the effect of curtailing revenue and of restricting circulation, and thus of limiting ‘ ‘ the circulation of information to which the public is entitled in virtue of the constitutional guaranties.” (Pp. 244-245, 250, of 297 U.S.) Further, states the opinion, “It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government. But this is not an ordinary form of tax, but one single in kind, with a long history of hostile misuse against the freedom of the press. . . . The tax here involved is bad not because it takes money from the pockets of the appellees” but because of its effect of restricting the dissemination of information to the public.¹⁴ The Act before this court in the present case would not only curtail revenues, as in Grosjean, but would utterly prohibit collecting them from home subscribers; it thus constitutes a complete ban on the establishment of a home subscription television system in California, and, consequently, on the disseminating of speech, ideas, and entertainment over such a system. As already stated, a suppression so sweeping in its scope can be sustained only to prevent a “clear and present danger” that there would otherwise be brought about “substantive evils” against which the state has a right to protect. No such ‘ ‘ danger ” or “ evils ’ ’ are shown here.

In this connection we note further that the radio and television regulation sustained in National Broadcasting Co. v. United States, supra (1943) 319 U.S. 190 (and other cases which followed) upon which defendant relies, was limited to certain rules of the Federal Communications Commission governing the selection of programs—rules whose purpose was to avoid practices which would hinder growth of new networks and would deprive the listening public in many areas of service and would deprive local stations of much of their choice of programs. (Pp. 198-209.) The court points out, among other things, that the FCC rules had been authorized by a Congress fearful that “in the absence of governmental control the public interest might be subordinated to monopolistic domination in the broadcasting field.” (P. 219 of 319 U.S.) We are convinced that the sweeping suppression of home subscription television, as attempted by the Act now before us, would, contrary to the Act ⅛ declarations, encourage and foster monopolistic domination by existing television stations deriving their financial support from commercial advertisers. (See fn. 11, ante.) Monopoly in the field of,communication can best be avoided by permitting the growth of that field of endeavor in directions and through media which will provide the widest possible range and choice of ideas and of expression.

Our conclusion that the Act violates the free speech and press guaranties renders it unnecessary to discuss plaintiffs’ further contention that it likewise imposes an arbitrary classification in violation of the equal protection clauses of the federal and state Constitutions.

The judgment is affirmed.

Traynor, C. J., McComb, J., Peters, J., Tobriner, J., and Peek, J., concurred.

1 An Act to Preserve Free Television in California. The People of the State of California do enact as follows:

Section 1: This Act shall be known and may be cited as the Free Television Act.

Section 2: The public has heretofore had available to it over existing television stations and privately owned receiving sets many different categories of free television programs, including telecasts of sporting. events, political discussions, original dramatic presentations, variety programs, news programs, motion pictures and other programs of interest. The development of television in the United States has been based upon the public policy of making proper use in the public interest of existing television channels, and providing a broad range of interesting and informative programs free of eharge to the viewing public. The information, instruction and entertainment derived from such programs are in the public interest. The development of any subscription television business would have an adverse effect upon presently licensed television stations which do not make a charge to viewers; and would tend to deprive the members of the public, who have made a substantial investment in television receiving equipment, of their present freedom of choice with respect to television programs, and of the information, instruction and entertainment now readily and freely available to them. It would tend to create a monopoly. For those and related reasons it would be contrary to the public policy of this State.

Section 3. The public shall have the right to view any television program on a home television set free of charge regardless of how such program is transmitted, whether in whole or in part by wires, lines, radio waves, waveguides, eoaxial cable, mierowave transmitters or other electronic or mechanical means or any combination thereof; and no person shall, directly or indirectly, make a eharge inconsistent with such right. “Television program” includes any program of a category, form, kind, nature or type substantially similar to any category, form, kind, nature or type which was transmitted on or before the effective date hereof free of eharge for reception on home television sets. “Home television set” includes any electronic or electrical device generally or customarily used for the reception of television programs in the home.

Section 4: The following contracts, agreements, or understandings, where inconsistent with such free transmission, are absolutely void and are not enforceable: (a) those made or executed after the effective date of this Act, and (b) those in existence on such effective date to the extent that they are executory.

Section 5: Any person who is injured by the violation of this Act may recover threefold any damages and may enjoin such violation and shall be entitled, in addition, to his costs of suit and reasonable attorneys fees.

Section 6: This Act shall not apply to community antenna systems or to hotel or apartment antenna systems, where no charge is made to the viewer based upon or related to program content, or to non-profit educational television systems, whether closed or open circuit.

Section 7: If any section, sentence or clause of this Act is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portion of this Act. It is hereby declared that this Act, and each section, sentence or clause thereof, would have been passed, irrespective of the fact that any one or more sections, sentences or clauses might be adjudged to be unconstitutional or for any other reason invalid. If any part of this Act is invalid in one or more of its applications, that part nevertheless remains in effect in all valid applications. It is the intention in this Act in respect of its subject matter to exercise the power of the State to the full extent of its constitutional power; and so, this Act shall be applicable to that extent regardless of any limitations of its applicability on the ground of a want of constitutional power.

Section 8; Chapter 5 of the First Extraordinary Session of 1963, codified as Part 15 of Division 2 of the Revenue and Taxation Code, together with all other acts which may be in conflict herewith, is hereby repealed.

2 The articles of incorporation state in article Second that ‘1 The purposes for which this corporation is formed are:

“a) To engage exclusively in the business of subscription television in California.

“b) To transmit television programs for viewing on home television sets by means of wires, lines, coaxial cable, or any combination thereof, and to make a direct charge upon subscribers for the right to view such television programs. As used in these articles, the words ‘television programs * include any program of a category, form, kind, nature or type substantially similar to any category, form, nature or type which was transmitted on or before December 7, 1964, free of charge for reception on home television sets; the words ‘home television sets’ include any electronic or electrical device generally or customarily used for the reception of television programs in the home.

“c) To establish a subscription television system or systems in California and to transmit or transport to California for viewing over its system or systems a substantial number of television programs and attractions made and originated in states other than California.

“d) To have and to exercise all powers conferred by the laws of California upon corporations formed under the laws pursuant to and under which this corporation is formed, as such laws are now in effect and at any time after may be amended; provided, however, that this corporation shall exercise powers only incidental with the purposes expressly set forth in subparagraphs (a) through (c), inclusive, of this Article Second; provided, further, that nothing in this Article SECOND shall be construed as authorizing this corporation to establish or operate any community, hotel, or apartment antenna system or systems where no charge is made to the viewer based upon or related to program content, or any nonprofit educational television system or systems, whether closed or open circuit.’ ’

3 More specifically, the allegations so denied are that TC, the proposed corporation, plans and intends as follows:

“8. . . . to engage in the business of subscription television and to. establish a subscription television system in the State of California.

“9. ... to establish a closed circuit subscription television system. Programs transmitted by [TC] will be disseminated to the individual .premises of subscribers over coaxial cable network channels leased from telephone companies. Individual subscribers will be connected to the coaxial cable network by a ‘ coaxial drop ’ leading to the subscriber ⅛ television set. No modification of subscribers’ sets is required. Beeeption of television programs transmitted by others will not be affected by said . . . system.

“10. . . . initially subscribers will be able to select during hours of transmission one of three subscription television channels or music supplied by [TC].

“11.... to present over . . . said system sporting events, current motion pictures, plays, educational programs, and other special programs and attractions to subscribers. Each subscriber will pay a program charge for programs he may choose to view. [TC] does not intend to transmit commercial advertising over its said system; [TC] intends that its primary source of revenue will be fees received from subscribers.

“12. . . . to transmit for viewing over its said system a substantial number of programs and attractions made and originated in states other than California; said programs and attractions will be transported or transmitted by or on behalf of [TC] from said states to California.”

Also denied is the following allegation: At present several companies and individuals are conducting businesses in California which are ‘ ‘ engaged in presenting special attractions and programs, including sporting events, to individual viewers by a closed circuit coaxial cable network leased by said businesses from telephone companies (“theater subscription television”); said programs and special attractions are presented and viewed at theaters; each viewer pays a charge based upon program content to the owners of said businesses for the privilege of viewing said attractions and programs. Said initiative exempts . . . ‘theatre subscription television ’ businesses from its provisions. ’ ’

4 We have in mind-the occasional “educational” station supported at least in part by voluntary contributions from viewers.

5 We are also told that a significant and identifying characteristic of home subscription television from the viewer’s standpoint is that he will have a much greater ehoice in the selection of programs transmitted over subscription television systems, than over existing systems; that in subscription television there is a direct correlation between program content and revenue collected; that obviously, if subscribers do not like the subject matter of programs they will not pay to see them and the revenue of the subscription television station is immediately diminished; that consequently it will be the viewer, not the sponsor, who selects the programs broadcast over subscription television systems.

6 See Breard v. City of Alexandria (1951) 341 U.S. 622, 644 [71 S.Ct. 920, 95 L.Ed. 1233, 35 A.L.R.2d 335]; Martin v. Struthers, supra (1943) 319 U.S. 141, 143; West Virginia State Board of Education v. Barnette, supra (1943) 319 U.S. 624, 630, 633-634; cf. Kovacs v. Cooper, supra (1949) 336 U.S. 77, 88-89.

7 See Canon v. Justice Court (1964) 61 Cal.2d 446, 455-456, 459-460 [6b] [39 Cal.Rptr. 228, 393 P.2d 428]; cf. People v. Woody, supra (1964) 61 Cal.2d 716, 727 [3b].

8 See also National Assn. for Adv. of Colored People v. Alabama (1964) 377 U.S. 288, 307-308 [84 S.Ct. 1302, 12 L.Ed.2d 325]; Kovacs v. Cooper, supra (1949) 336 U.S. 77, 81-88; Talley v. California (1960) 362 U.S. 60, 64 [80 S.Ct. 536, 4 L.Ed.2d 559].

9 See also Speiser v. Randall (1958) 357 U.S. 513, 526 [78 S.Ct. 1332, 2 L.Ed.2d 1460], in which the court held unconstitutional a requirement of a loyalty “declaration” as a condition of tax exemption, stating: “In practical operation . . . this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free. ’ ’

10 See also Near v. Minnesota, supra (1931) 283 U.S. 697, 720 (“Characterizing the publication [of malicious, scandalous and defamatory matter in newspapers] as a business, and the business as a nuisance, does not permit an invasion of the constitutional immunity against restraint”); Murdock v. Pennsylvania (1943) 319 U.S. 105 [63 S.Ct. 870, 891, 87 L.Ed. 1292, 146 A.L.R. 81] (that a religious organization solicited “purchase” of its books and pamphlets did not weaken its right to First Amendment protection).

11 The dissemination of protected expression under commercial auspices is of course to be distinguished from the dissemination of “purely commercial” communications such as mercantile advertising—which do not enjoy the First Amendment protection otherwise accorded. (See Murdock v. Pennsylvania, supra (1943) 319 U.S. 105, 110-111; Valentine v. Chrestensen (1942) 316 U.S. 52, 55 [62 S.Ct. 920, 86 L.Ed. 1262]; New York Times Co. v. Sullivan, supra (1964) 376 U.S. 254, 266.)

12 See Murdock v. Pennsylvania, supra (1943) 319 U.S. 105, 110; Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232 [163 P.2d 704], appeal dism. 331 U.S. 543 [67 S.Ct. 1428, 91 L.Ed. 1662]; City of Corona v. Corona etc. Independent (1953) 115 Cal.App.2d 382, 390 [252 P.2d 56], cert. den. 346 U.S. 833 [74 S.Ct. 2, 98 L.Ed. 356].

13 Cf. Saia V. New York, supra (1948) 334 U.S. 558, striking down as overbroad an ordinance prohibiting the use of sound amplifiers in public places without permission from the chief of police, where no standards were prescribed for the exercise of that official’s discretion.

14 See also Sun Pub. Co. v. Walling (6th Cir. 1944) 140 F.2d 445, 449 (“No ease has been cited and none has been found . . . which holds that a newspaper may be barred from the channels of commerce as a means of effectuating an administrative regulation, or a court decree enforcing an administrative order.’’); City of Baltimore v. A. S. Abell Co. (1958) 218 Md. 273 [145 A.2d 111, 119].