American Civil Liberties Union v. Board of Education

quirement was aimed not at the use to which the school property would be put, but was intended to bar certain organizations from use because of their political beliefs; in other words, that the statute ignored the fact that such an organization might desire to use the school property for perfectly legitimate purposes.

When that decision became final, the respondent board investigated the necessity and propriety of filling (by local rule) the gap left by this court’s holding that section 16565 was unconstitutional. It noted that other sections of the Civic Center Act, which remained in effect, required it to take such steps as might be required to prevent improper use of school property, while still other sections granted it the power to make local rules and regulations for such purpose. It considered several proposed regulations, and finally adopted the rule here under scrutiny.

Thus the basic question is whether respondent’s rule 1316 is in conflict with any provision of the state or federal Constitutions. The respective contentions of the parties in this regard are as follows:

■1. Petitioners urge and respondent denies that the statement of information required by rule 1316 is an unconstitutional abridgement of petitioners’ rights of free speech and assembly for the same reasons that this court held that the provisions of Education Code section 16565 are invalid;

2. Petitioners urge and respondent denies that such requirement subverts the presumption of innocence and inverts the burden of proof;

3. Petitioners urge and respondent denies that rule 1316 violates due process of law because it is too broad, and is arbitrary, unreasonable, and vague;

4. Petitioners urge and respondent denies that respondent was without power to enact rule 1316 because of state preemption of the field.

We find no merit in petitioners’ contentions.

Respondent’s rule 1316 does not establish an unconstitutional abridgement of the rights of free speech and assembly:

not to be presented. The rule here under discussion requires only that the applicant censor itself; that is, that it submit in advance a statement that it does not knowingly intend to commit any criminal act on the school property. Therefore, the requirement of respondent’s rule cannot be deemed to be the type of prior restraint ordinarily referred to as an unconstitutional limitation upon freedom of speech or assembly.

Moreover, not all prior restraints are, ipso facto, unconstitutional. In Times Film, Corp. v. Chicago, 365 U.S. 43 [ 81 S.Ct. 391 , 5 L.Ed.2d 403 ], the United States Supreme Court recently held that a Chicago ordinance requiring an exhibitor to submit all motion picture films to a governmental censor before receiving a permit for public display was a valid prior restraint which did not violate the constitutional guarantee of free speech. There, commencing at page 47, the court said: “It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. Minnesota (1931) 283 U.S. 697 , 715-716 [ 51 S.Ct. 625 , 75 L.Ed. 1357 ], Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint ‘is stated too broadly, if every such restraint is deemed to be prohibited. . . . [T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. ’ These included, the Chief Justice found, utterances creating ‘a hindrance’ to the Government’s war effort, and ‘actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. ’ In addition, the Court said that ‘the primary requirements of decency may be enforced against obscene publications’ and the ‘security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. ’ ’ ’ On page 49, the court added, “The phrase ‘prior restraint’ is not a self-wielding sword. Nor can it serve as a talismanie test. . . .

“Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. The State’s sole remedy, it says, is the invocation of criminal process under the Illinois pornography statute . . . and then only after a transgression. But this position, as we have seen,

the instant problem. There can be no doubt that those authorities hold that where the matter under consideration is one in which the public has a peculiar concern (such as the right to practice law) the governing body may have the right to inquire, in advance of granting licenses, into the qualifications (including the beliefs) of the individual seeking the license. Respondent contends that those cases are controlling here, and petitioners reply that permission to use a public building does not entail such public concern. These arguments are not here relevant for the reason that the rule here involved does not require the applicant to disclose either its qualifications, its beliefs, or its past activities.

Respondent’s rule does not subvert; the presumption of innocence, and does not invert the burden of proof:

Petitioners’ argument in this regard is not entirely clear. It is not clear whether they claim that respondent is engaged in an unconstitutional attempt to require applicants to prove their fitness to use school property, or claim that the rule is invalid because it presupposes that applicants may be guilty of an intention to commit crimes. In either event, they argue that the constitutionality of rule 1316 must be tested by respondent’s motives in adopting the measure. In an effort to justify the claim that the purpose of the legislation (as distinct from its effect) is unconstitutional, they call attention to what is obviously intemperate language appearing as arguments in favor of proposed repressive legislation (principally, the arguments prepared by the proponents of the so-called “Francis Amendment”—which was proposition 24 submitted to and defeated by the voters of the state at the general election on November 6, 1962—and contained in the pamphlet distributed to registered voters by the Secretary of State). While such language may have disclosed the motivation of the proponents of that legislation, its appearance at or near the date on which respondent adopted rule 1316 does not connect it with respondent. It is irrelevant to the issue of respondent’s motives in adopting its rule. More relevant are the minutes of the respondent board, contained in the record. Those minutes do show—and petitioners have made much of the fact— that some few of the members were anxious to institute a local rule which would have had the same purposes and effect as the statutes held to be unconstitutional by this court. But such board members were in the minority, and the rule they proposed failed to pass. The argu

ments and the proceedings indicate that the majority of respondent board recognized the existence of a duty to make school property available to the public within the framework of the Civic Center Act, together with a duty to take such steps as might be necessary to insure proper use of the property. The local board has a clear duty in the latter respect. In proposing and securing adoption of rule 1316 the majority attempted to (and did) comply with those mandates. Whatever may have been the motives of the minority, they were unsuccessful, and respondent may not be judged by the actions or views of that minority.

The strongest evidence of the purpose of rule 1316 is to be found in the language used in the rule. Reduced to its essence, the single requirement of the rule is that an applicant state that, to the test of his knowledge, the purpose for which it desires to use the school property is a legal one. It seems clear that such a requirement is designed for the single purpose of determining in advance, so far as may be possible, that the school premises will not be used knowingly for illegal purposes.

Nor does rule 1316 subvert the presumption of innocence, or invert the burden of proof. As already pointed out, the rule does not require an applicant to divulge its political, sociological or economic beliefs. Neither does it require an applicant to set forth its general purposes, its associations, or anything about itself save and except the use to which it intends to put the school property—and even in that regard it makes no distinction between prospective uses so long as they are within the law. Certainly if the rule required an applicant to state that it would refrain from using the school premises to display lewd or obscene pictures for the purpose of attracting the prurient and lascivious, it could not be attacked as shifting the burden of proof, or of subverting the presumption of innocence. Likewise, it could not be so attacked if it required a statement that the premises would not be used for the purposes of inciting riot, serving alcoholic beverages to minors, setting off dangerous fireworks, or for any other of a limitless number of possible activities which are concededly inimical to public health and safety. Since any such requirement is limited to a future use of the property (as distinct from an inquiry into applicant’s past conduct) it is unrelated to the question of guilt or innocence. It might touch tangentially upon burden of proof, since it requires an applicant

Nor can we find—as petitioners contend—any unconstitutional limitation in the fact that the rule requires an applicant to make the statement therein set forth under penalty of perjury. The oath is but the vehicle by which information (constitutional or unconstitutional) is sought. It is the right to demand the particular information that is at issue, and not the form in which it is requested. Frequently an applicant for governmental benefits is required to give information under oath. This is so because the verified information is more apt to be complete and correct. If the information sought by respondent is unassailable, then the form in which it is required is of no moment.

To this argument petitioners reply that the requirement (that the statement be made under penalty of perjury) implies an improper intent to place an applicant in a position where it may be prosecuted for perjury should the school premises be ultimately used for an illegal purpose. It must be remembered, however, that to secure a conviction for breach of the ordinance it would not be sufficient to show that applicant should have known that some law would be violated during the period applicant was in possession of the premises. The rule requires scienter as an indispensable element. It calls for the information “to the best of . . . [applicant’s] knowledge.” To secure a conviction the prosecution would be required to prove that, at the time of signing and filing the statement, the applicant either knew that the school premises would be used, or intended to use them, for an illegal purpose. The requirement that an applicant make the preliminary denial of intent to commit crime upon the school property does not, in any real sense, require it to prove its innocence in any criminal proceeding which may thereafter arise. In such a proceeding scienter would be the necessary element. (See American Communications Assn. v. Douds, 339 U.S. 382 [ 70 S.Ct. 674 , 94 L.Ed. 925 ].) Respondent’s rule does not violate due process of law by reason of being too broad, vague, arbitrary or unreasonable:

Petitioners contend that insofar as rule 1316 requires an applicant to state that the school property “will not be used for the commission of any act that is prohibited by law, ’ ’ it fails to meet the standards of legislative clarity. They also argue that since the applicant is required to state that he will not use the premises for' the commission of any crime, it fol

lows that "acts prohibited by law” must refer to something other than crime. While the enactment may be redundant, it is not vague. Acts prohibited by law and acts which constitute the commission of a crime may be one and the same thing, but the meaning of each phrase is clear. Each of the two phrases simply requires an applicant to assure the governing board that the school property will not knowingly be used for any purpose which is prohibited by law. The authorities on which petitioners rely, for the purpose of demonstrating vagueness, relate to situations where the penal statute, itself, failed to set forth an ascertainable standard of guilt. But respondent’s rule 1316 does not purport to be a penal statute, nor does it attempt to define a crime, or to make any act whatsoever punishable by law. It is simply the enactment of a rule under which the governing board, in order to meet the duties imposed upon it by statute, can determine in advance that its property will be used in a lawful manner. By use of the challenged phrases it has simply incorporated the definitions of the various crimes already set forth in the prohibitory statutes enacted by a higher legislative authority. Its purpose is not to prohibit such act or acts, but to ascertain that the property for which it is responsible will not knowingly be used in any such manner. Por complete definition of what is a crime or act prohibited by law, reference may be made to the individual statutes of prohibition. If any such individual statute is subject to the legitimate claim of vagueness, the specific act which that statute attempts to prohibit may not be punishable. But a simple reference to all such acts in a statute which is not criminal in nature, is not vague. "Reasonable certainty is all that is required. A statute will not be held void for uncertainty if any reasonable and practical construction can be given its language.” (45 Cal. Jur.2d, Statutes, § 37, p. 561, and cases cited in fn. 20.) It will be upheld if its terms may be made reasonably certain by reference to other definable sources (idem). Here reference to the Penal Code supplies any allegedly missing definition of what is meant by "crime” or by "acts prohibited by law.” Even in the case of a penal statute it has been held that the failure to define the word "crime” cannot be attacked as vague or indefinite for the reason that the meaning of such word may be discovered by reference to other code provisions (People v. Wieler, 55 Cal.App. 687 , 690 [ 204 P. 410 ]).

will not knowingly use the premises for any illegal act is subject to the same interpretation.

The courts have been quite liberal in permitting general phraseology. In American Communications Assn. v. Douds, supra, 339 U.S. 382 , the United States Supreme Court held that the phrase “illegal and unconstitutional methods” was sufficiently definite to withstand such an attack. That decision dealt with the requirement that union officials, seeking the benefits of federal labor laws for their unions, file a non-communist affidavit. The high court not only held that the quoted language was sufficiently definite to withstand the test of due process, but it further stressed the fact that the only punishment specified in the statute was prescribed for statements made “knowingly and wilfully.” Respondent’s rule 1316 requires a statement in language similar to that approved in American Communications, and it likewise contains the saving clause that such statements be made only “to the best of . . . [declarant’s] knowledge.”

In the final analysis, the determination that a particular statute is or is not too broad in the constitutional sense turns not so much on its language as upon its effect. A statute may be phrased in words that are “broad,” in that they convey general rather than specific concepts, and yet be the means of stating a regulation that is narrow and limited in its application. (See for example the two ordinances involved in Saia v. New York, 334 U.S. 558 [ 68 S.Ct. 1148 , 92 L.Ed. 1574 ], and Kovacs v. Cooper, 336 U.S. 77 [ 69 S.Ct. 448 , 93 L.Ed. 513 , 10 A.L.R.2d 608 ].) Such is respondent’s rule. It is not phrased as a regulation, in that it does not enumerate specific acts which may or may not be performed on school property. It is cast in words of prohibition, in that it effectively prohibits the use of the property if the applicant intends to commit any crime on those premises. The fact that it embraces any illegal act does not make it too broad, in the constitutional sense. (See Kovacs v. Cooper, supra.)

Some mention is required of the fact that rule 1316, in addition to the requirement that the applicant state that the premises will not knowingly be used for an illegal purpose, also requires a denial of any intent to commit the crime specified in sections 11400 and 11401 of the Penal Code. Those sections prohibit and penalize advocacy of, or teaching, aiding or abetting criminal syndicalism (which is defined as any act intended to accomplish change in industrial own

basic premise of this argument is factually incorrect. Here, the state Legislature not only refrained from expressing an intent fully to occupy the field of regulation of the use of school properties, but it affirmatively empowered the respective school boards to take all necessary steps in providing such regulation. Education Code sections 16551, 16555, 16556, 16557, 16558, 16559, 16561, 16562 and 16563 (each of which is within and a part of the Civic Center Act) all contain provisions indicating such an intent. Some are merely permissive, in that they authorize, but do not require the local board to grant public use of property under certain conditions, thus leaving the board to make its own rulings thereon. Some authorize, but do not require, the board to make charges for the use of the property commensurate with the cost to the school district, thus leaving the board to make the necessary regulations in regard thereto. But of chief interest are the provisions of sections 16557 through 16559. Section 16557 provides, in part, that ‘ ‘ [t] he use of any public schoolhouse and grounds for any meeting is subject to such reasonable rules and regulations as the governing board of the district prescribes[,] ” 16558 declares that the management, direction and control of the civic center is vested in the board, and 16559 gives the board power to make all needful rules and regulations for conducting civic meetings in such property. The language of these sections, as well as the content of the entire chapter, clearly indicates a legislative intent to provide a state-wide method whereby school property may be made available to the public for certain specified purposes, and to leave the details thereof to further legislation by each local school board. Thus the Civic Center Act did not preempt the field. A further indication that the state did not intend to preempt the field is to be found in the very sections (16564 and 16565) held by us to be unconstitutional in our prior opinion. The first of those two sections provided that school property shall not be used to further any program intended to accomplish the overthrow of government by force or violence, and makes such use a misdemeanor. The second provided a statement to be filed with the school board by the applicant, for the purpose of ascertaining that no such illegal use would be made of the property. In addition, that section provided that “ [t]he school board may require the furnishing of such additional information as it deems necessary to make the determination that the use of the school property” would

not violate the provisions of section 16564. That authorized the local authorities to legislate beyond and in addition to the provisions enacted by the state Legislature. The fact that a portion of the state enactment was found to be unconstitutional on other grounds does not eliminate such clear statement of legislative intent. Tolman v. Underhill, 39 Cal.2d 708 [ 249 P.2d 280 ], on which petitioners rely (and which struck down as invalid by reason of state preemption a loyalty oath which the Begents of the University of California sought to impose on its faculty) is not controlling for the reason that there the state Legislature had covered the field of employee loyalty oaths without expressly reserving a further right to local public employers. Petitioners’ further citations are not in point, in that they pertain to fields of legislation which, by their peculiar nature, require a single statewide system. Such is not true of the regulation of use of school property which, under the existing state statute, may be made available to the public on such terms as the local boards shall determine.

Buie 1316 of the respondent board is not invalid for any of the reasons suggested by petitioners. The alternative writ of mandate heretofore issued should be discharged and a peremptory writ denied. It is so ordered.

Gibson, C. J., Traynor, J., Schauer, J., McComb, J., Tobriner, J., and Peek, J., concurred.