Eisen v. Regents of Univ. of Cal.

Preliminarily, we turn to the University’s contention that the registration statement here in question was a “public record” pursuant to former section 1227 of the Government Code or a “public writing” pursuant to former sections 1888, 1892 and 1894 of the Code of Civil Procedure, set forth below,^[1] all since repealed (Stats. 1968, ch. 1473) and replaced by the more comprehensive provisions of the new public records act, sections 6250-6259 of the Government Code. We conclude that it is not necessary to answer this complex question.^[2] Even if the “public record” statutes were otherwise applicable, a determination of their constitutionality with respect to First Amendment issues would nevertheless be required in the resolution of this case.

Consequently, we deal, as we did in Goldberg, supra,

pages 876-877,^[3] with the issue presented in the constitutional framework of whether here, the University’s policy of annexing limited disclosure conditions to the privilege of becoming a registered campus organization entitled to use campus facilities, are justified by a sufficient state interest to outweigh the alleged impairment of plaintiff’s constitutional rights (Canon v. Justice Court, 61 Cal.2d 446 , 456 [ 39 Cal.Rptr. 228 , 393 P.2d 428 ]).

Plaintiff argues that he is entitled to a constitutional right of anonymity and that the disclosure^[4] of the “registration” statements to inspection by members of the public has a deterrent effect on his rights of free speech and association. He relies on N.A.A.C.P. v. Alabama, 357 U.S. 449 [ 2 L.Ed.2d 1488 , 78 S.Ct. 1163 ], Bates v. Little Rock, 361 U.S. 516 [ 4 L.Ed.2d 480 , 80 S.Ct. 412 ], and Talley v. California, 362 U.S. 60 [ 4 L.Ed.2d 559 , 80 S.Ct. 536 ]. Therefore, we review these in detail, as well as the two most recent pertinent decisions of our state Supreme Court, Cannon v. Justice Court, supra, and Huntley v. Public Utilities Com., 69 Cal.2d 67 [ 69 Cal.Rptr. 605 , 442 P.2d 685 ], the latter unknown to both parties at the oral argument.

N.A.A.C.P. v. Alabama, supra, arose out of a state investigation of the organization’s alleged failure to comply with a statute requiring registration of foreign corporations doing business in the state. Pursuant to a motion by the state, the N.A.A.C.P. produced records of its activities but refused to turn over its membership lists and was subsequently convicted of contempt. The U.S. Supreme Court reversed the conviction on a finding that compelling an individual to disclose his membership in the group would restrain his freedom of association ; the history of the organization demonstrated that disclosure was likely to induce members to withdraw and dissuade others from joining; that the attitude toward it created a fear of exposure and the consequences that might flow from such exposure (at p. 462 [2 L.Ed.2d at pp. 1499-1500]). In determining whether the state’s interest in securing the mem

bership data might justify the restraint, the court found that since the N.A.A.C.P. had produced much of the desired information, including the names of its employees and officials, the disclosure of the names of rank and file members had no substantial bearing on the issue raised. Accordingly, the state’s interest was insufficient to justify the infringement on freedom of assembly.

In Bates, the Supreme Court voided a conviction for failure to comply with an amendment to the city’s licensing tax provisions requiring that organizations operating in the city file lists of contributors, members and other data. In Bates, likewise, the names and addresses of the officers of the organization had been filed and the court found that the information requested did not seem to be related to the taxing provisions. Thus, here again, it was determined that the state’s interest was insufficient to warrant the clear impairment of associational freedom.^[5] In both N.A.A.C.P. and Bates, there was evidence that members of the organization had been subjected to harassment and threats of bodily harm.

No such evidence was present in Talley v. California, 362 U.S. 60 [ 4 L.Ed.2d 480 , 80 S.Ct. 412 ], wherein the court compared compulsory disclosure with outright prohibition, and concluded that identification and fear of reprisal might deter peaceful discussions of public matters of importance. Accordingly, the Supreme Court struck down as void on its face, for infringing the freedom of expression, a Los Angeles city ordinance that prohibited public distribution of all handbills unless they bore on their face the name and address of the author, publisher and distributor. The court noted that the Los Angeles ordinance was not narrowly drawn to reach only handbills that were obscene, offensive or advocated unlawful conduct. Thus, Talley establishes that the First Amendment right of freedom of speech includes the right to remain anonymous under the particular facts of that case.

The California Supreme Court was faced with delineating the extent of the right to anonymity in Canon v. Justice Court, 61 Cal.2d 446 [ 39 Cal.Rptr. 228 , 393 P.2d 428 ], Though the court held Elections Code section 1047 unconstitutional on other grounds, it did uphold the disclosure

result. (N.A.A.C.P. v. Alabama, supra, 357 U.S. 449 , 463 [ 2 L.Ed.2d 1488 ,1500].)”

The court also rejected an argument that the case was controlled by Lewis Publishing Co. v. Morgan, 229 U.S. 288 [ 57 L.Ed. 1190 , 33 S.Ct. 867 ],^[6] and stated that restrictions on freedom of speech are not justified simply because alternative forms of expression are available. The Supreme Court then held unconstitutional the tariff schedules requiring complete disclosure of the information and noted that no legitimate state interest in justifying the impairment has been presented and that the claimed need of the telephone company to disassociate itself from authorship of the recorded messages could be achieved only in a manner not restrictive of First Amendment rights. The court distinguished Canon, at page 75, by noting that the disclosure requirement there upheld abridged freedom of speech, but under the particular facts, the infringement was minimal and justified by a sufficient state interest.

We think that questions of associational rights, like the one presented here, should be framed and discussed in terms of other constitutional doctrines, such as free speech.^[7] The question here presented is whether the right of the People of this state to know the identity and responsible officers of student organizations that may be using the publicly financed and owned campus facilities of the University is a sufficient state interest to warrant the indirect infringement of plaintiff’s First Amendment rights.

Significantly, none of the cases heretofore cited involved the use of public property. However, just as the People of the state have a right to know how their elected officials con

duct the public business,^[8] they are entitled to know the identity and responsible officers of organizations that ¿re granted the privileges of becoming campus organizations and using the public property and facilities of the University. Nor can it be successfully argued that the protection of plaintiff’s First Amendment rights requires complete anonymity. The U.S. Supreme Court has held that First Amendment freedoms are not violated by legislation requiring ‘ ‘ a modicum of information” of lobbyists (United States v. Harriss, 347 U.S. 612 , 613-617 [ 98 L.Ed. 989 , 994-996, 74 S.Ct. 808 ]).^[9] The court said at page 625 [98 L.Ed.at pp. 1000-1001]: “Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much. It acted in the same spirit and for a similar purpose in passing the Federal Corrupt Practices Act—to maintain the integrity of a basic governmental process. See Burroughs & Canon v. United States, 290 U.S. 534 , 545 [ 78 L.Ed. 484 , 489, 54 S.Ct. 287 ].”

We question the consistency of plaintiff’s assertion of a right to keep anonymous his relationship as an officer of the organization (a relationship and responsibility he presumably

sought and assumed voluntarily)^[10] in the absence of any immediate and direct threats of physical or other danger, as were admittedly present in N.A.A.C.P. v. Alabama and Bates v. Little Rock, supra. Significantly, while those cases clearly delineated the rights of rank and file members to remain anonymous, they did not deal with the question of whether the same right also applied to an officer of the organization. In both N.A.A.C.P. and Bates, supra, the court noted that since the information concerning the identity of the organization and the names of some of the responsible officers had been disclosed, the additional disclosure of the names of the rank and file members would not serve a legitimate state purpose. Thus, it can reasonably be inferred that the disclosure sufficient to identify the organization and the officers responsible for its activities is not equally repugnant to First Amendment freedoms.

Nor here, as in Talley, can it be said that the identification requirement of the University’s policy and the disclosure of this limited information to a member of the public would unduly deter the freedom of expression of dissident organizations and their officers. In fact, it appears well designed to promote that freedom of expression in a manner consistent with the University’s interest in insuring the orderly enjoyment of its facilities together with the public’s right to ascertain the identity of organizations and the responsible officers^[11] who are using public property. The Regents’ policy here in issue is like a time, place and manner regulation of free speech enacted to maintain the integrity of the extracurricular aspects of the educational process at a public university (cf. Goldberg v. Regents, supra). The instant case is totally unlike the cases involving an attempted

unconstitutional denial of the use of public property for the exercise of First Amendment rights (see In re Hoffman, 67 Cal.2d 845 [ 64 Cal.Rptr. 97 , 434 P.2d 353 ].)^[12]

Impairments of First Amendment rights are “balanced” by determining whether there is a reasonable relationship between the impairment and a subject of overriding and compelling state interest. (Canon v. Justice Court, supra, p. 456). There can be no doubt that disclosure requirements may impair rights of free speech and association and that First Amendment rights are primarily intended to protect minority views (Huntley v. Public Utilities Com., supra, p. 73). We conclude, however, as in Canon v. Justice Court, that here, the compelling interest of the public in being able to ascertain the information contained in the registration statement outweighs any minimal infringement of plaintiff’s First Amendment rights.

It may be contended that even though the overriding purpose is legitimate and substantial, the purpose can be achieved by means more narrow than the University’s policy in question (Shelton v. Tucker, 364 U.S. 479 [ 5 L.Ed.2d 231 , 81 S.Ct. 247 ]). The only information made available to the public is the purpose of the organization and the names of its officers found on the registration statement submitted to the appropriate campus officer. We think this modicum of information is far from the overly broad measures condemned in Talley and Huntley, supra, and well within the express limits of United States v. Harriss, supra, and the inferential limits of N.A.A.C.P., Bates and Shelton v. Tucker, 364 U.S. 479 , 488-490 [ 5 L.Ed.2d 231 , 237-239, 81 S.Ct. 247 ].^[13]

As we agree with the trial court’s conclusion that the complaint could not be amended to state a cause of action, we do not deem it necessary to discuss plaintiff’s alternative contention.

The judgment appealed from is affirmed.

Shoemaker, P. J., and Agee, J., concurred.