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Talley v. California



 362 U.S. 60


January 13-14, 1960, Argued

March 7, 1960, Decided



Certiorari to the Appellate Department of the Superior Court of California, Los Angeles County



172 Cal. App. 2d Supp. 797, 332 P. 2d 447, reversed.


A. L. Wirin and Hugh R. Manes argued the cause for petitioner. With

them on the brief was Fred Okrand.


Philip E. Grey argued the cause for respondent. With him on the

brief was Roger Arnebergh.


Shad Polier, Will Maslow, Leo Pfeffer and Joseph B. Robison filed

a brief for the American Jewish Congress, as amicus curiae, urging



Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan,

Whittaker, Stewart


MR. JUSTICE BLACK delivered the opinion of the Court.


The question presented here is whether the provisions of a Los

Angeles City ordinance restricting the distribution of handbills

"abridge the freedom of speech and of the press secured against state

invasion by the Fourteenth Amendment of the Constitution." n1 The

ordinance, @ 28.06 of the Municipal Code of the City of Los Angeles,



"No person shall distribute any hand-bill in any place under any

circumstances, which does not have printed on the cover, or the face

thereof, the name and address of the following:

"(a) The person who printed, wrote, compiled or manufactured the


"(b) The person who caused the same to be distributed; provided,

however, that in the case of a fictitious person or club, in addition

to such fictitious name, the true names and addresses of the owners,

managers or agents of the person sponsoring said hand-bill shall also

appear thereon."


The petitioner was arrested and tried in a Los Angeles Municipal

Court for violating this ordinance. It was stipulated that the

petitioner had distributed handbills in Los Angeles, and two of them

were presented in evidence. Each had printed on it the following:



National Consumers Mobilization,


Box 6533,


Los Angeles 55, Calif.


PLeasant 9-1576.

The handbills urged readers to help the organization carry on a

boycott against certain merchants and businessmen, whose names were

given, on the ground that, as one set of handbills said, they carried

products of "manufacturers who will not offer equal employment

opportunities to Negroes, Mexicans, and Orientals." There also

appeared a blank, which, if signed, would request enrollment of the

signer as a "member of National Consumers Mobilization," and which

was preceded by a statement that "I believe that every man should

have an equal opportunity for employment no matter what his race,

religion, or place of birth."


The Municipal Court held that the information printed on the

handbills did not meet the requirements of the ordinance, found the

petitioner guilty as charged, and fined him $ 10. The Appellate

Department of the Superior Court of the County of Los Angeles

affirmed the conviction, rejecting petitioner's contention, timely

made in both state courts, that the ordinance invaded his freedom of

speech and press in violation of the Fourteenth and First Amendments

to the Federal Constitution. n2 172 Cal. App. 2d Supp. 797, 332 P. 2d

447. Since this was the highest state court available to petitioner,

we granted certiorari to consider this constitutional contention.

360 U.S. 928.


In Lovell v. Griffin, 303 U.S. 444, we held void on its face an

ordinance that comprehensively forbade any distribution of literature

at any time or place in Griffin, Georgia, without a license.

Pamphlets and leaflets, it was pointed out, "have been historic

weapons in the defense of liberty" n3 and enforcement of the Griffin

ordinance "would restore the system of license and censorship in its

baldest form." Id., at 452. A year later we had before us four

ordinances each forbidding distribution of leaflets -- one in

Irvington, New Jersey, one in Los Angeles, California, one in

Milwaukee, Wisconsin, and one in Worcester, Massachusetts. Schneider

v. State, 308 U.S. 147. Efforts were made to distinguish these four

ordinances from the one held void in the Griffin case. The chief

grounds urged for distinction were that the four ordinances had been

passed to prevent either frauds, disorder, or littering, according to

the records in these cases, and another ground urged was that two of

the ordinances applied only to certain city areas. This Court

refused to uphold the four ordinances on those grounds pointing out

that there were other ways to accomplish these legitimate aims

without abridging freedom of speech and press. Frauds, street

littering and disorderly conduct could be denounced and punished as

offenses, the Court said. Several years later we followed the

Griffin and Schneider cases in striking down a Dallas, Texas,

ordinance which was applied to prohibit the dissemination of

information by the distribution of handbills. We said that although

a city could punish any person for conduct on the streets if he

violates a valid law, "one who is rightfully on a street . . .

carries with him there as elsewhere the constitutional right to

express his views in an orderly fashion . . . by handbills and

literature as well as by the spoken word." Jamison v. Texas, 318 U.S.

413, 416.


The broad ordinance now before us, barring distribution of "any

hand-bill in any place under any circumstances," n4 falls precisely

under the ban of our prior cases unless this ordinance is saved by

the qualification that handbills can be distributed if they have

printed on them the names and addresses of the persons who prepared,

distributed or sponsored them. For, as in Griffin, the ordinance

here is not limited to handbills whose content is "obscene or

offensive to public morals or that advocates unlawful conduct." n5

Counsel has urged that this ordinance is aimed at providing a way to

identify those responsible for fraud, false advertising and libel.

Yet the ordinance is in no manner so limited, nor have we been

referred to any legislative history indicating such a purpose.

Therefore we do not pass on the validity of an ordinance limited to

prevent these or any other supposed evils. This ordinance simply

bars all handbills under all circumstances anywhere that do not have

the names and addresses printed on them in the place the ordinance



There can be no doubt that such an identification requirement

would tend to restrict freedom to distribute information and thereby

freedom of expression. "Liberty of circulating is as essential to

that freedom as liberty of publishing; indeed, without the

circulation, the publication would be of little value." Lovell v.

Griffin, 303 U.S., at 452.


Anonymous pamphlets, leaflets, brochures and even books have

played an important role in the progress of mankind. Persecuted

groups and sects from time to time throughout history have been able

to criticize oppressive practices and laws either anonymously or not

at all. The obnoxious press licensing law of England, which was also

enforced on the Colonies was due in part to the knowledge that

exposure of the names of printers, writers and distributors would

lessen the circulation of literature critical of the government. The

old seditious libel cases in England show the lengths to which

government had to go to find out who was responsible for books that

were obnoxious to the rulers. John Lilburne was whipped, pilloried

and fined for refusing to answer questions designed to get evidence

to convict him or someone else for the secret distribution of books

in England. Two Puritan Ministers, John Penry and John Udal, were

sentenced to death on charges that they were responsible for writing,

printing or publishing books. n6 Before the Revolutionary War

colonial patriots frequently had to conceal their authorship or

distribution of literature that easily could have brought down on

them prosecutions by English-controlled courts. Along about that

time the Letters of Junius were written and the identity of their

author is unknown to this day. n7 Even the Federalist Papers, written

in favor of the adoption of our Constitution, were published under

fictitious names. It is plain that anonymity has sometimes been

assumed for the most constructive purposes.


We have recently had occasion to hold in two cases that there are

times and circumstances when States may not compel members of groups

engaged in the dissemination of ideas to be publicly identified.

Bates v. Little Rock, 361 U.S. 516; N. A. A. C. P. v. Alabama, 357

U.S. 449, 462. The reason for those holdings was that identification

and fear of reprisal might deter perfectly peaceful discussions of

public matters of importance. This broad Los Angeles ordinance is

subject to the same infirmity. We hold that it, like the Griffin,

Georgia, ordinance, is void on its face.


The judgment of the Appellate Department of the Superior Court of

the State of California is reversed and the cause is remanded to it

for further proceedings not inconsistent with this opinion.


It is so ordered.




n1 Schneider v. State, 308 U.S. 147, 154. Cf. Lovell v. Griffin,

303 U.S. 444, 450.


n2 Petitioner also argues here that the ordinance both on its face

and as construed and applied "arbitrarily denies petitioner equal

protection of the laws in violation of the Due Process and Equal

Protection" Clauses of the Fourteenth Amendment. This argument is

based on the fact that the ordinance applies to handbills only, and

does not include within its proscription books, magazines and

newspapers. Our disposition of the case makes it unnecessary to

consider this contention.


n3 The Court's entire sentence was: "These [pamphlets and

leaflets] indeed have been historic weapons in the defense of

liberty, as the pamphlets of Thomas Paine and others in our own

history abundantly attest." It has been noted that some of Thomas

Paine's pamphlets were signed with pseudonyms. See Bleyer, Main

Currents in the History of American Journalism (1927), 90-93.

Illustrations of other anonymous and pseudonymous pamphlets and other

writings used to discuss important public questions can be found in

this same volume.


n4 Section 28.00 of the Los Angeles Municipal Code defines

"handbill" as follows: "'HAND-BILL' shall mean any hand-bill, dodger,

commercial advertising circular, folder, booklet, letter, card,

pamphlet, sheet, poster, sticker, banner, notice or other written,

printed or painted matter calculated to attract attention of the



n5 Lovell v. Griffin, 303 U.S., at 451.


n6 Penry was executed and Udal died as a result of his

confinement. 1 Hallam, The Constitutional History of England (1855),

205-206, 232.


n7 In one of the letters written May 28, 1770, the author asked

the following question about the tea tax imposed on this country, a

question which he could hardly have asked but for his anonymity:

"What is it then, but an odious, unprofitable exertion of a

speculative right, and fixing a badge of slavery upon the Americans,

without service to their masters?" 2 Letters of Junius (1821) 39.



MR. JUSTICE HARLAN, concurring.


In judging the validity of municipal action affecting rights of

speech or association protected against invasion by the Fourteenth

Amendment, I do not believe that we can escape, as Mr. Justice

Roberts said in Schneider v. State, 308 U.S. 147, 161, "the delicate

and difficult task" of weighing "the circumstances" and appraising

"the substantiality of the reasons advanced in support of the

regulation of the free enjoyment of" speech. More recently we have

said that state action impinging on free speech and association will

not be sustained unless the governmental interest asserted to support

such impingement is compelling. See N. A. A. C. P. v. Alabama, 357

U.S. 449, 463, 464; Sweezy v. New Hampshire, 354 U.S. 234, 265

(concurring opinion); see also Bates v. Little Rock, 361 U.S. 516.


Here the State says that this ordinance is aimed at the prevention

of "fraud, deceit, false advertising, negligent use of words,

obscenity, and libel," in that it will aid in the detection of those

responsible for spreading material of that character. But the

ordinance is not so limited, and I think it will not do for the

State simply to say that the circulation of all anonymous handbills

must be suppressed in order to identify the distributors of those

that may be of an obnoxious character. In the absence of a more

substantial showing as to Los Angeles' actual experience with the

distribution of obnoxious handbills, * such a generality is for me

too remote to furnish a constitutionally acceptable justification for

the deterrent effect on free speech which this all-embracing

ordinance is likely to have.



On these grounds I concur in the judgment of the Court.





* On the oral argument the City Attorney stated:


"We were able to find out that prior to 1931 an effort was made by

the local Chamber of Commerce, urging the City Council to do

something about these handbills and advertising matters which were

false and misleading -- had no names of sponsors. They were

particularly interested in the fictitious name. They said, 'Who are

these people that are distributing; who are advertising; doing things

of that sort?' The meager record that we were able to find indicates

that a request from the Council to the City Attorney as to their

legal opinion on this subject [sic]. The City Attorney wrote back

and formed the conclusion that distribution of handbills, pamphlets,

or other matters, without the name of the fictitious firm or officers

would be legal [sic]. Thereafter in the early part of 1932 an

ordinance was drafted, and submitted to the City Council, and

approved by them, which related to the original subject -- unlawful

for any person, firm or association to distribute in the city of Los

Angeles any advertisement or handbill -- or any other matter which

does not have the names of the sponsors of such literature."




WHITTAKER join, dissenting.


To me, Los Angeles' ordinance cannot be read as being void on its

face. Certainly a fair reading of it does not permit a conclusion

that it prohibits the distribution of handbills "of any kind at any

time, at any place, and in any manner," Lovell v. Griffin, 303 U.S.

444, 451 (1938), as the Court seems to conclude. In Griffin, the

ordinance completely prohibited the unlicensed distribution of any

handbills. As I read it, the ordinance here merely prohibits the

distribution of a handbill which does not carry the identification of

the name of the person who "printed, wrote, compiled . . .

manufactured [or] . . . caused" the distribution of it. There could

well be a compelling reason for such a requirement. The Court

implies as much when it observes that Los Angeles has not "referred

to any legislative history indicating" that the ordinance was adopted

for the purpose of preventing "fraud, false advertising and libel."

But even as to its legislative background there is pertinent

material which the Court overlooks. At oral argument, the City's

chief law enforcement officer stated that the ordinance was

originally suggested in 1931 by the Los Angeles Chamber of Commerce

in a complaint to the City Council urging it to "do something about

these handbills and advertising matters which were false and

misleading." Upon inquiry by the Council, he said, the matter was

referred to his office, and the Council was advised that such an

ordinance as the present one would be valid. He further stated that

this ordinance, relating to the original inquiry of the Chamber of

Commerce, was thereafter drafted and submitted to the Council. It

was adopted in 1932. In the face of this and the presumption of

validity that the ordinance enjoys, the Court nevertheless strikes it

down, stating that it "falls precisely under the ban of our prior

cases." This cannot follow, for in each of the three cases cited, the

ordinances either "forbade any distribution of literature . . .

without a license," Lovell v. Griffin, supra, or forbade, without

exception, any distribution of handbills on the streets, Jamison v.

Texas, 318 U.S. 413 (1943); or, as in Schneider v. State, 308 U.S.

147 (1939), which covered different ordinances in four cities, they

were either outright bans or prior restraints upon the distribution

of handbills. I, therefore, cannot see how the Court can conclude

that the Los Angeles ordinance here "falls precisely" under any of

these cases. On the contrary, to my mind, they neither control this

case nor are apposite to it. In fact, in Schneider, depended upon by

the Court, it was held, through Mr. Justice Roberts, that, "In every

case . . . where legislative abridgment of the rights is asserted,

the courts should be astute to examine the effect of the challenged

legislation . . . weigh the circumstances and . . . appraise the

substantiality of the reasons advanced . . . ." Id., at 161. The

Court here, however, makes no appraisal of the circumstances, or the

substantiality of the claims of the litigants, but strikes down the

ordinance as being "void on its face." I cannot be a party to using

such a device as an escape from the requirements of our cases, the

latest of which was handed down only last month. Bates v. Little

Rock, 361 U.S. 516. n1


Therefore, before passing upon the validity of the ordinance, I

would weigh the interests of the public in its enforcement against

the claimed right of Talley. The record is barren of any claim, much

less proof, that he will suffer any injury whatever by identifying

the handbill with his name. Unlike N. A. A. C. P. v. Alabama, 357

U.S. 449 (1958), which is relied upon, there is neither allegation

nor proof that Talley or any group sponsoring him would suffer

"economic reprisal, loss of employment, threat of physical coercion

[or] other manifestations of public hostility." Id., at 462. Talley

makes no showing whatever to support his contention that a restraint

upon his freedom of speech will result from the enforcement of the

ordinance. The existence of such a restraint is necessary before we

can strike the ordinance down.


But even if the State had this burden, which it does not, the

substantiality of Los Angeles' interest in the enforcement of the

ordinance sustains its validity. Its chief law enforcement officer

says that the enforcement of the ordinance prevents "fraud, deceit,

false advertising, negligent use of words, obscenity, and libel,"

and, as we have said, that such was its purpose. In the absence of

any showing to the contrary by Talley, this appears to me entirely



I stand second to none in supporting Talley's right of free speech

-- but not his freedom of anonymity. The Constitution says nothing

about freedom of anonymous speech. In fact, this Court has approved

laws requiring no less than Los Angeles' ordinance. I submit that

they control this case and require its approval under the attack made

here. First, Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913),

upheld an Act of Congress requiring any newspaper using the

second-class mails to publish the names of its editor, publisher,

owner, and stockholders. 39 U. S. C. @ 233. Second, in the Federal

Regulation of Lobbying Act, 2 U. S. C. @ 267, Congress requires those

engaged in lobbying to divulge their identities and give "a modicum

of information" to Congress. United States v. Harriss, 347 U.S. 612,

625 (1954). Third, the several States have corrupt practices acts

outlawing, inter alia, the distribution of anonymous publications

with reference to political candidates. n2 While these statutes are

leveled at political campaign and election practices, the underlying

ground sustaining their validity applies with equal force here.


No civil right has a greater claim to constitutional protection or

calls for more rigorous safeguarding than voting rights. In this

area the danger of coercion and reprisals -- economic and otherwise

-- is a matter of common knowledge. Yet these statutes, disallowing

anonymity in promoting one's views in election campaigns, have

expressed the overwhelming public policy of the Nation. Nevertheless

the Court is silent about this impressive authority relevant to the

disposition of this case.


All three of the types of statutes mentioned are designed to

prevent the same abuses -- libel, slander, false accusations, etc.

The fact that some of these statutes are aimed at elections,

lobbying, and the mails makes their restraint no more palatable, nor

the abuses they prevent less deleterious to the public interest, than

the present ordinance.


All that Los Angeles requires is that one who exercises his right

of free speech through writing or distributing handbills identify

himself just as does one who speaks from the platform. The ordinance

makes for the responsibility in writing that is present in public

utterance. When and if the application of such an ordinance in a

given case encroaches on First Amendment freedoms, then will be soon

enough to strike that application down. But no such restraint has

been shown here. After all, the public has some rights against which

the enforcement of freedom of speech would be "harsh and arbitrary in

itself." Kovacs v. Cooper, 336 U.S. 77, 88 (1949). We have upheld

complete proscription of uninvited door-to-door canvassing as an

invasion of privacy. Breard v. Alexandria, 341 U.S. 622 (1951). Is

this less restrictive than complete freedom of distribution --

regardless of content -- of a signed handbill? And commercial

handbills may be declared verboten, Valentine v. Chrestensen, 316

U.S. 52 (1942), regardless of content or identification. Is Talley's

anonymous handbill, designed to destroy the business of a commercial

establishment, passed out at its very front door, and attacking its

then lawful commercial practices, more comportable with First

Amendment freedoms? I think not. Before we may expect international

responsibility among nations, might not it be well to require

individual responsibility at home? Los Angeles' ordinance does no



Contrary to petitioner's contention, the ordinance as applied does

not arbitrarily deprive him of equal protection of the law. He

complains that handbills are singled out, while other printed media

-- books, magazines, and newspapers -- remain unrestrained. However,

"the problem of legislative classification is a perennial one,

admitting of no doctrinaire definition. Evils in the same field may

be of different dimensions and proportions, requiring different

remedies. . . . Or the reform may take one step at a time,

addressing itself to the phase of the problem which seems most acute

to the legislative mind. . . . The prohibition of the Equal

Protection Clause goes no further than the invidious discrimination.

[I] cannot say that that point has been reached here." Williamson v.

Lee Optical Co., 348 U.S. 483, 489 (1955).


I dissent.




n1 "When it is shown that state action threatens significantly to

impinge upon constitutionally protected freedom it becomes the duty

of this Court to determine whether the action bears a reasonable

relationship to the achievement of the governmental purpose asserted

as its justification." 361 U.S., at 525.


n2 Thirty-six States have statutes prohibiting the anonymous

distribution of materials relating to elections. E. g.: Kan. Gen.

Stat., 1949, @ 25-1714; Minn. Stat. Ann. @ 211.08; Page's Ohio Rev.

Code Ann. @ 3599.09; Purdon's Pa. Stat. Ann., Title 25, @ 3546.