Appellant, a Birmingham, Alabama, newspaper editor, was arrested
on a complaint of violating § 285 of the Alabama Corrupt Practices
Act by writing and publishing on election day an editorial urging
adoption in that election of the mayor-council form of government.
Section 285 proscribes electioneering or soliciting votes on
election day for or against any proposition or candidate involved
in the election. The trial court sustained demurrers on the grounds
that the statute violated state and federal free speech guarantees.
The Alabama Supreme Court, holding the statutory election-day
restriction reasonable or "within the field of reasonableness,"
reversed and remanded the case for trial.
Held:
1. This Court has jurisdiction over the appeal. Notwithstanding
the remand of the case, the Alabama Supreme Court's judgment was
"final" within the meaning of 28 U.S.C. § 1257, because appellant's
conviction in any subsequent trial is inevitable in view of that
court's ruling that the Alabama statute is constitutional and
appellant's concession that he wrote and published the editorial.
Pp.
384 U. S.
217-218.
2. A state statute making it a crime for a newspaper editor to
publish an editorial on election day urging people to vote in a
particular way flagrantly violates the First Amendment, applied to
the States by the Fourteenth, a major purpose of which was to
protect free discussion of governmental affairs. Pp.
384 U. S.
218-220.
278 Ala. 188,
176 So. 2d
884, reversed and remanded.
Page 384 U. S. 215
MR. JUSTICE BLACK delivered the opinion of the Court.
The question squarely presented here is whether a State,
consistently with the United States Constitution, can make it a
crime for the editor of a daily newspaper to write and publish an
editorial on election day urging people to vote a certain way on
issues submitted to them.
On November 6, 162, Birmingham, Alabama, held an election for
the people to decide whether they preferred to keep their existing
city commission form of government or replace it with a
mayor-council government. On election day, the Birmingham
Post-Herald, a daily newspaper, carried an editorial written by its
editor, appellant, James E. Mills, which strongly urged the people
to adopt the mayor-council form of government. [
Footnote 1] Mills was later arrested on a
complaint charging that, by
Page 384 U. S. 216
publishing the editorial on election day, he had violated § 285
of the Alabama Corrupt Practices Act, Ala.Code, 1940, Tit. 17, §
268-286, which makes it a crime
"to do any electioneering or to solicit any votes . . . in
support of or in opposition to any proposition that is being voted
on on the day on which the election affecting such candidates or
propositions is being held. [
Footnote 2]"
The trial court sustained demurrers to the complaint on the
grounds that the state statute abridged freedom of speech and press
in violation of the Alabama Constitution and the First and
Fourteenth Amendments to the United States Constitution. On appeal
by the State, the Alabama Supreme Court held that publication of
the editorial on election day undoubtedly violated the state law,
and then went on to reverse the trial court by holding that the
state statute, as applied, did not unconstitutionally abridge
freedom of speech or press. Recognizing that the state law did
limit and restrict both speech and press, the State Supreme Court
nevertheless sustained it as a valid exercise of the State's police
power chiefly because, as that court said, the press "restriction,
everything considered, is within the field of reasonableness," and
"not an unreasonable limitation upon free speech, which
includes
Page 384 U. S. 217
free press." 278 Ala. 188, 195, 196,
176
So. 2d 884, 890. The case is here on appeal under 28 U.S.C. §
1257 (1964 ed.).
I
The State has moved to dismiss this appeal on the ground that
the Alabama Supreme Court's judgment is not a "final judgment," and
therefore not appealable under § 1257. [
Footnote 3] The State argues that, since the Alabama
Supreme Court remanded the case to the trial court for further
proceedings not inconsistent with its opinion (which would include
a trial), the Supreme Court's judgment cannot be considered
"final." This argument has a surface plausibility, since it is true
the judgment of the State Supreme Court did not literally end the
case. It did, however, render a judgment binding upon the trial
court that it must convict Mills under this state statute if he
wrote and published the editorial. Mills concedes that he did, and
he therefore has no defense in the Alabama trial court. Thus, if
the case goes back to the trial court, the trial, so far as this
record shows, would be no more than a few formal gestures leading
inexorably towards a conviction, and then another appeal to the
Alabama Supreme Court for it formally to repeat its rejection of
Mills' constitutional contentions, whereupon the case could then
once more wind its weary way back to us as a judgment
unquestionably final and appealable. Such a roundabout process
would not only be an inexcusable delay of the benefits Congress
intended to grant by providing for appeal to this Court, but it
would also result in a completely unnecessary waste of time and
energy in judicial systems already troubled by delays due
Page 384 U. S. 218
to congested dockets. [
Footnote
4] The language of § 1257 as we construed it in
Pope v.
Atlantic Coast Line R. Co., 345 U. S. 379,
345 U. S.
381-383, does not require a result leading to such
consequences.
See also Construction Laborers v. Curry,
371 U. S. 542,
371 U. S.
548-551;
Richfield Oil Corp. v. State Board,
329 U. S. 69,
329 U. S. 72-74.
Following those cases, we hold that we have jurisdiction.
We come now to the merits. The First Amendment, which applies to
the States through the Fourteenth, prohibits laws "abridging the
freedom of speech, or of the press." The question here is whether
it abridges freedom of the press for a State to punish a newspaper
editor for doing no more than publishing an editorial on election
day urging people to vote a particular way in the election. We
should point out at once that this question in no way involves the
extent of a State's power to regulate conduct in and around the
polls in order to maintain peace, order and decorum there. The sole
reason for the charge that Mills violated the law is that he wrote
and published an editorial on election day urging Birmingham voters
to cast their votes in favor of changing their form of
government.
Whatever differences may exist about interpretations of the
First Amendment, there is practically universal agreement that a
major purpose of that Amendment was to protect the free discussion
of governmental affairs. This, of course, includes discussions of
candidates, structures and forms of government, the manner in which
government is operated or should be operated, and all such
Page 384 U. S. 219
matters relating to political processes. The Constitution
specifically selected the press, which includes not only
newspapers, books, and magazines, but also humble leaflets and
circulars,
see Lovell v. Griffin, 303 U.
S. 444, to play an important role in the discussion of
public affairs. Thus, the press serves and was designed to serve as
a powerful antidote to any abuses of power by governmental
officials, and as a constitutionally chosen means for keeping
officials elected by the people responsible to all the people whom
they were selected to serve. Suppression of the right of the press
to praise or criticize governmental agents and to clamor and
contend for or against change, which is all that this editorial
did, muzzles one of the very agencies the Framers of our
Constitution thoughtfully and deliberately selected to improve our
society and keep it free. The Alabama Corrupt Practices Act, by
providing criminal penalties for publishing editorials such as the
one here, silences the press at a time when it can be most
effective. It is difficult to conceive of a more obvious and
flagrant abridgment of the constitutionally guaranteed freedom of
the press.
Admitting that the state law restricted a newspaper editor's
freedom to publish editorials on election day, the Alabama Supreme
Court nevertheless sustained the constitutionality of the law on
the ground that the restrictions on the press were only "reasonable
restriction,s" or at least "within the field of reasonableness."
The court reached this conclusion because it thought the law
imposed only a minor limitation on the press -- restricting it only
on election days -- and because the court thought the law served a
good purpose. It said:
"It is a salutary legislative enactment that protects the public
from confusive last-minute charges and countercharges and the
distribution of propaganda in an effort to influence voters on an
election day,
Page 384 U. S. 220
when, as a practical matter, because of lack of time, such
matters cannot be answered or their truth determined until after
the election is over."
278 Ala. 188, 195-196,
176 So. 2d
884, 890. This argument, even if it were relevant to the
constitutionality of the law, has a fatal flaw. The state statute
leaves people free to hurl their campaign charges up to the last
minute of the day before election. The law held valid by the
Alabama Supreme Court then goes on to make it a crime to answer
those "last-minute" charges on election day, the only time they can
be effectively answered. Because the law prevents any adequate
reply to these charges, it is wholly ineffective in protecting the
electorate "from confusive last-minute charges and countercharges."
We hold that no test of reasonableness can save a state law from
invalidation as a violation of the First Amendment when that law
makes it a crime for a newspaper editor to do no more than urge
people to vote one way or another in a publicly held election.
The judgment of the Supreme Court of Alabama is reversed, and
the case is remanded for further proceedings not inconsistent with
this opinion.
It is so ordered.
[
Footnote 1]
The editorial said in part:
"Mayor Hanes' proposal to buy the votes of city employees with a
promise of pay raises which would cost the taxpayers nearly a
million dollars a year was cause enough to destroy any confidence
the public might have had left in him."
"It was another good reason why the voters should vote
overwhelmingly today in favor of Mayor-Council government."
"Now Mr. Hanes, in his arrogance, proposes to set himself up as
news censor at City Hall and, 'win or lose' today, he says he will
instruct all city employees under him to neither give out news
regarding the public business with which they are entrusted nor to
discuss it with reporters either from the Post-Herald or the
News."
"
* * * *"
"If Mayor Hanes displays such arrogant disregard of the public's
right to know on the eve of the election, what can we expect in the
future if the City Commission should be retained?"
"Let's take no chances."
"Birmingham and the people of Birmingham deserve a better break.
A vote for Mayor-Council government will give it to them."
[
Footnote 2]
"§ 285(599) Corrupt practices at elections enumerated and
defined. -- It is a corrupt practice for any person on an election
day to intimidate or attempt to intimidate an elector or any of the
election officers; or, obstruct or hinder or attempt to obstruct or
hinder, or prevent or attempt to prevent the forming of the lines
of the voters awaiting their opportunity or time to enter the
election booths; or to hire or to let for hire any automobile or
other conveyance for the purpose of conveying electors to and from
the polls; or, to do any electioneering or to solicit any votes or
to promise to cast any votes for or against the election or
nomination of any candidate, or in support of or in opposition to
any proposition that is being voted on on the day on which the
election affecting such candidates or propositions is being
held."
Ala.Code, 1940, Tit. 17.
[
Footnote 3]
Section 1257 provides in part:
"Final judgments or decrees rendered by the highest court of a
State in which a decision could be had may be reviewed by the
Supreme Court. . . ."
[
Footnote 4]
This case was instituted more than three and one-half years ago.
If jurisdiction is refused, we cannot know that it will not take
another three and one-half years to get this constitutional
question finally determined.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins,
concurring.
Although I join the opinion of the Court, I think it appropriate
to add a few words about the finality of the judgment we reverse
today, particularly in view of the observation in the separate
opinion of MR. JUSTICE HARLAN that
"limitations on the jurisdiction of this Court . . . should be
respected, and not turned on and off at the pleasure of its members
or to suit the convenience of litigants."
The decision of the Alabama Supreme Court approved a law which,
in my view, is a blatant violation of freedom
Page 384 U. S. 221
of the press. The threat of penal sanctions has, we are told,
already taken its toll in Alabama: the Alabama Press Association
and the Southern Newspaper Publishers Association, as
amici
curiae, tell us that, since November, 1962, editorial comment
on election day has been nonexistent in Alabama. The chilling
effect of this prosecution is thus anything but hypothetical; it is
currently being experienced by the newspapers and the people of
Alabama.
We deal here with the rights of free speech and press in a basic
form: the right to express views on matters before the electorate.
In light of appellant's concession that he has no other defense to
offer should the case go to trial,
compare Pope v. Atlantic
Coast Line R. Co., 345 U. S. 379;
Richfield Oil Corp. v. State Board, 329 U. S.
69, and considering the importance of the First
Amendment rights at stake in this litigation, it would require
regard for some remote, theoretical interests of federalism to
conclude that this Court lacks jurisdiction because of the unlikely
possibility that a jury might disregard a trial judge's
instructions and acquit.
Indeed, even had appellant been unwilling to concede that he has
no defense -- apart from the constitutional question -- to the
charges against him, we would be warranted in reviewing this case.
That result follows
a fortiori from our holdings that,
where First Amendment rights are jeopardized by a state prosecution
which, by its very nature, threatens to deter others from
exercising their First Amendment rights, a federal court will take
the extraordinary step of enjoining the state prosecution.
Dombrowski v. Pfister, 380 U. S. 479;
Cameron v. Johnson, 381 U. S. 741. As
already noted, this case has brought editorial comment on election
day to a halt throughout the State of Alabama. Our observation in
NAACP v. Button, 371 U. S. 415,
371 U. S. 433,
has grim relevance here:
"The threat of sanctions may deter . . .
Page 384 U. S. 222
exercise [of First Amendment rights] almost as potently as the
actual application of sanctions.
*"
For these reasons, and for the reasons stated in the opinion of
the Court, I conclude that the judgment is final.
* In
California v. Stewart, 383 U.S. 903, where a state
court reversed a criminal conviction on federal grounds, we ruled
on a motion to dismiss that the State may obtain review in this
Court even though a new trial remained to be held. We reached that
conclusion because otherwise the State would be permanently
precluded from raising the federal question, state law not
permitting the prosecution to appeal from an acquittal.
And see
Construction Laborers v. Curry, 371 U.
S. 542;
Mercantile National Bank v. Langdeau,
371 U. S. 555.
Separate opinion of MR. JUSTICE HARLAN
In my opinion, the appellant is not here on a "final" state
judgment, and therefore, under 28 U.S.C. § 1257 (1964 ed.), the
Court has no jurisdiction to entertain this appeal.
Republic
Natural Gas Co. v. Oklahoma, 334 U. S. 62;
cf. Parr v. United States, 351 U.
S. 513.
Although his demurrer to the criminal complaint has been
overruled by the highest court of the State, the appellant still
faces a trial on the charges against him. If the jury [
Footnote 2/1] fails to convict -- a
possibility which, unless the courtroom antennae of a former trial
lawyer have become dulled by his years on the bench, is by no means
remote in a case so unusual as this one is -- the constitutional
issue now decided will have been prematurely adjudicated. But even
were one mistaken in thinking that a jury might well take the bit
in its teeth and acquit, despite the Alabama Supreme Court's ruling
on the demurrer and the appellant's admitted authorship of the
editorial in question, the federal statute nonetheless commands us
not to adjudicate the issue decided until the
Page 384 U. S. 223
prosecution has run its final course in the state courts
adversely to the appellant.
Although, of course, much can be said in favor of deciding the
constitutional issue now, and both sides have indicated their
desire that we do so, I continue to believe that constitutionally
permissible limitations on the jurisdiction of this Court, such as
those contained in § 1257 undoubtedly are, should be respected, and
not turned on and off at the pleasure of its members or to suit the
convenience of litigants. [
Footnote
2/2] If the traditional federal policy of "finality" is to be
changed, Congress is the body to do it. I would dismiss this appeal
for want of jurisdiction.
Since the Court has decided otherwise, however, I feel warranted
in making a summary statement of my views on the merits of the
case. I agree with the Court that the decision below cannot stand.
But I would rest reversal on the ground that the relevant provision
of the Alabama statute --
"to do any electioneering or to solicit any votes [on election
day] . . . in support of or in opposition to any proposition that
is being voted on on the day on which the election affecting such
candidates or propositions is being held"
-- did not give the appellant, particularly in the context of
the rest of the statute (
ante, p.
384 U. S. 216,
n. 2) and in the absence of any relevant authoritative state
judicial decision, fair warning that the publication of an
editorial of this kind was reached by the foregoing provisions of
the Alabama Corrupt Practices Act.
See Winters v. New
York, 333 U. S. 507. I
deem a broader holding unnecessary.
Page 384 U. S. 224
[
Footnote 2/1]
At oral argument, in this Court appellant's counsel conceded
that a jury trial was still obtainable,
see Ala.Code, Tit.
13, § 36, Tit. 15 § 31 (1958 Recomp.), and that it might result in
an acquittal.
[
Footnote 2/2]
Compare Construction Laborers v. Curry, 371 U.
S. 542,
and Mercantile National Bank v.
Langdeau, 371 U. S. 555. The
three cases cited by the Court,
ante, p.
384 U. S. 218,
fall short of supporting the "finality" of the judgment before us.
None of them involved jury trials, and, in each instance, the case
was returned to the lower court in a posture where, as a practical
matter, all that remained to be done was to enter judgment. What is
done today more than ever erodes the final judgment rule.