The opinion of the court was delivered by: WERKER
The New York State Board of Elections ("Board") was created as part of the recently enacted "New York State Campaigns, elections and procedures law" (N.Y. Election Law § 465 et seq. (McKinney's Consol. Laws, c. 17, Supp. 1974). Pursuant to its authorized powers under § 472 of the Election Law, the Board promulgated a "Fair Campaign Code" ("Code") for the purpose, inter alia, of "stimulating just debate" in political campaigns.
Plaintiffs in these two cases have challenged the constitutionality of those sections of the Code (and of the statute, Election Law § 472 (a)) which prohibit "during the course of any campaign for nomination or election to public office or party position," by means of "campaign literature, media advertisements or broadcasts, public speeches, press releases, writings or otherwise," "attacks on a candidate based on race, sex, religion or ethnic background" (§ 6201.1(c)); any misrepresentation of any candidate's qualifications" including the use of "personal vilification" and "scurrilous attacks" (§ 6201.1(d)); any "misrepresentation of a candidate's position" (§ 6201.1(e)); and any "misrepresentation of any candidate's party affiliation or party endorsement" (§ 6201.1 (f)).
The State argues that the Code and the statute constitute a narrowly drawn regulatory scheme covering an area of unprotected expression. We disagree and hold that the challenged sections of the Code and of the statute are repugnant to the right of freedom of speech guaranteed by the First Amendment and are unconstitutional on their face.
Roy Vanasco was the unsuccessful Republican party candidate for the New York State Assembly in the 57th Assembly District. His incumbent opponent filed a complaint with the Board in which he claimed that Vanasco had distributed palm cards using the phrase "Republican-Liberal" when in fact Vanasco was only on the ballot as a candidate of the Republican party. The complaint also alleged that the palm cards implied that Vanasco currently held the position of Assemblyman.
After a hearing held on October 16, 1974
the Board issued a decision in which it found that the use of the phrase "Republican-Liberal" "misrepresented his [Vanasco's] party endorsement, since he was not the candidate of the Liberal Party" (a violation of § 6201.1(f) of the Code). Concluding that the printing on the palm card "does not clearly indicate that he [Vanasco] is currently an Assemblyman" the Board refused to find that Vanasco had also violated § 6201.1(d) of the Code. The Board then ordered Vanasco to surrender all campaign literature which contained the phrase "Republican-Liberal" or to submit a plan for re-marking the literature. Vanasco complied with the Board's order by remarking his campaign literature.
Joseph Ferris was the Democratic-Liberal candidate for an Assembly seat in the 51st Assembly District. Ferris was elected to office. His incumbent opponent, Vincent Riccio, complained to the Board that Ferris had misrepresented Riccio's voting record in a leaflet distributed by Ferris and by making certain remarks which had been quoted in a newspaper article. The leaflet claimed that Riccio voted himself a $17,000 salary increase; received his salary for less than 100 days work; opposed increased funds for recreation for the aging and opposed aid to community colleges.
A hearing was held and a decision filed on November 4, 1974, one day before the election, wherein the Board found that Ferris had misrepresented Riccio's voting record (a violation of § 6201.1(e)) and had done so "with actual knowledge of its falsity or with reckless disregard of its falsity."
Like Vanasco, Ferris was ordered to surrender his campaign literature or submit a plan for re-marking it. Ferris complied with the Board's order.
On October 29, 1974 Vanasco and Ferris filed suit against the Board in the Eastern District of New York
in which they sought the convening of a three-judge court to declare the statute and the Code unconstitutional on their face and as applied to them, and preliminary and permanent injunctive relief against enforcement of the Code and the statute by the Board. An application for a temporary restraining order was filed and denied and the complaint and application for a three-judge court were dismissed by the district court on October 20, 1974. The United States Court of Appeals for the Second Circuit denied a motion for a stay pending appeal on November 4, 1974, but on the same day filed a decision reversing the order of the district court and ordered the convening of a three-judge court. Vanasco v. Schwartz, 506 F.2d 524 (2d Cir. 1974).
Plaintiff Robert Postel received a notice from the Board on October 25, 1974, informing him that his opponent for the Democratic nomination for Assemblyman in the 68th Assembly District, A. B. "Pete" Grannis, had filed a complaint with the Board alleging violations of § 6201.1(d) and (f). Specifically, Grannis charged that certain Postel campaign literature misrepresented that Grannis had a "patronage job" in the State Department of Environmental Conservation; received major financial support from Republican "big whigs" such as Laurence Rockefeller and Henry Diamond; that the New York Court of Appeals had directed a new election after having adduced proof that a number of Republicans had voted illegally in a Democratic primary; that a complaint against Grannis had been filed with the U.S. Commission on Civil Rights and that Grannis was a registered Republican in 1973.
Postel's hearing before the Board was started on October 25, 1974 and continued on October 26. By an interim order dated October 28, Postel was ordered to cease and desist the distribution of any and all literature containing any language complained of in the proceeding before the Board. Before his hearing was continued, Postel filed suit in the Southern District of New York in which he asked for relief similar to that in Vanasco and Ferris' suit.
The District Court granted Postel's application for a temporary restraining order against further Code hearings by the Board. Subsequently, this three-judge court was convened and ordered to consider both the Postel and Vanasco and Ferris cases. At a pre-trial conference held on March 20, 1975 it was agreed that the Court would consider a facial attack on the constitutionality of the Code. All parties have now moved for summary judgment.
Before considering the specifically challenged sections of the Code and the statute, the fundamental question which must be answered is: To what extent may a state regulate the speech of those persons who are seeking public office? The plaintiffs argue that only those "well-defined and narrowly limited" classes of speech including the "lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace,"
fall outside the protection of the First Amendment. The asserted target of several of the Code sections -- the deliberate calculated falsehood -- would in plaintiffs' view be constitutionally protected speech. According to plaintiffs, the answer to false campaign speech does not lie in regulation by the state but rather in criticism and rebuttal in the "marketplace of ideas." See Whitney v. California, 274 U.S. 357, 375-77, 47 S. Ct. 641, 71 L. Ed. 1095 (1927) (Brandeis, J., concurring). Far from enhancing the political process, regulation of campaign speech will in plaintiffs' words "undermine its most powerful safeguard."
While recognizing that the First Amendment enjoys a "preferred position" among those rights guaranteed by the Constitution, the Board contends that the statute and the Code prohibit only that expression which is unprotected by the First Amendment. Unprotected speech, the Board argues, would include those statements made "with 'actual malice' -- that is, with knowledge that [they were] false or with reckless disregard of whether [they were] false or not." New York Times v. Sullivan, 376 U.S. 254, 280, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686 (1964). Whether the deliberate false statement is the basis of a civil defamation suit by a public official (Times) or a "public figure" (Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967)) or of a criminal libel prosecution (Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964)) or, as in these cases, regulation of campaign speech by the state, the Board argues that if the statement is made with "actual malice" then it does not enjoy constitutional protection. We agree with this position.
Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964), in our view, answers plaintiffs' argument that the deliberate false statement is constitutionally protected speech when uttered during the course of a political campaign. There the Court noted:
"That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which 'are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .' Chaplinsky v. New Hampshire, 315 U.S. 568, 572 [62 S. Ct. 766, 86 L. Ed. 1031]. Hence the knowingly false statement and the false statement made with the reckless disregard of the truth, do not enjoy constitutional protection." 379 U.S. at 75, 85 S. Ct. at 216.
See also, Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974); Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv.L.Rev. 1, 18-19 (1965); Hastie, Free Speech: Contrasting Constitutional Concepts and Their Consequences, 9 Harv.Civ.Rights-Civ.Lib.L.Rev. 428, 447 (1974).
The decisions in Times and Garrison and other related cases
emphasize the necessity for statements concerning public issues to command a high degree of constitutional protection so that debate may be "uninhibited, robust, and wideopen." It is that standard of protection and not the narrow area of unprotected speech which they define that constitutes the real significance of the Times line of cases. See Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup.Ct.Rev. 191, 204-10. The Times standard of constitutional protection, in the words of Justice Powell, "administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 3008, 41 L. Ed. 2d 789 (1974).
It is important to emphasize here a proposition with which the Board agrees, i. e., that any state regulation of campaign speech must be premised on proof and application of a Times "actual malice" standard. We are not dealing with defamation suits brought by "private individuals" where a standard somewhat less than that required by Times would be appropriate. See Gertz v. Robert Welch, Inc., supra, at 339-48, 94 S. Ct. 2997.
To the contrary, Board proceedings concern regulation of the speech of "public officers" and "public figures" during campaigns for political office where the constitutional guarantee of freedom of speech "has its fullest and most urgent application." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S. Ct. 621, 625, 28 L. Ed. 2d 35 (1970). With this proposition in mind, we can agree with the Board's argument that calculated falsehoods are of such slight social value that no matter what the context in which they are made, they are not constitutionally protected.
Our discussion of course has so far existed on a theoretical level. We now focus on the contours of New York's regulations. As we do, we bear in mind the necessity for legislators to use only the most "sensitive tools" in separating legitimate from illegitimate speech, Speiser v. Randall, 357 U.S. 513, 525, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1957) so that First Amendment freedoms are given the necessary "breathing space" they need to survive. NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963).
By enacting a Fair Campaign Code, New York joined a growing list of states that now regulate campaign speech. See Developments in the Law -- Elections, 88 Harv.L.Rev. 1111, 1272-1298 (1975).
The Code is comprehensive and covers not only various forms of "misrepresentations" and "unethical speech," but also certain practices of "political espionage" (§ 6201.1(a)); "acts intended to hinder or prevent any eligible person from registering to vote" (§ 6201.1(h)); and use of public opinion polls (§ 6201.2). There are detailed provisions relating to the filing of complaints and answers with the Board (§ 6201.3(a)-(c)), and for the conducting of adversary hearings where a respondent may have counsel present, may cross-examine witnesses and may have the Board subpoena witnesses for him (§ 6201.3(d)-(e)). The Board can impose a fine of up to $1,000 for each violation and/or issue a report setting forth its findings and determinations (§ 6201.3(i)(2)-(3)). In addition, by § 472(c) of the Election Law, the Board is empowered to institute judicial proceedings to enforce its orders. With this broad legislative scheme in the background, we begin an analysis of those Code sections specifically challenged by the plaintiffs.
Attacks on a candidate based on race, sex, religion, or ethnic background.
The Board admits that this section of the Code (as well as § 472(a) of the Election Law, which contains the same prohibition) was not intended to be, and is not, limited by a Times "actual malice" standard. It is a blanket prohibition against any attacks on a candidate's race, sex, religion or ethnic background. Justification for such a sweeping prohibition rests on the assumption that this Code section focuses only on attributes which are completely unrelated to any candidate's "fitness for office." Such an assumption is an exercise in self-delusion. The Supreme Court has recognized that "given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks." Monitor Patriot Co. v. Roy, 401 U.S. 265, 275, 91 S. Ct. 621, 627, 28 L. Ed. 2d 35 (1970). Attempts to create a "public sector" -- "private sector" dichotomy were characterized as "syllogistic manipulation[s]" by the Court. 401 U.S. at 273, 91 S. Ct. 621. It would be a retreat from reality to hold that voters do not consider race, religion, sex or ethnic background when choosing political candidates. Speech is often provocative and indeed offensive, Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940); Terminiello v. Chicago, 337 U.S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 (1949); Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971), but unless it falls into one of those "well defined and narrowly limited classes" of unprotected speech (e. g., "fighting words") it enjoys constitutional protection. New York's attempt to eliminate an entire segment of protected speech from the arena of public debate is clearly unconstitutional.
Three sections of the Code specifically challenged by plaintiffs prohibit "misrepresentations of any candidate's qualifications" (§ 6201.1(d)); "misrepresentation of any candidate's position" (§ 6201.1(e)); and "misrepresentation of any candidate's party affiliation" (§ 6201.1(f)). As to these sections the Board contends that the statute and the Code are narrowly drafted so that only the deliberate calculated falsehood -- unprotected speech -- is the subject of regulation. We disagree and hold that these sections of the Code and that part of § 472(a) of the Election Law have not been so carefully drawn or authoritatively construed so as to regulate only unprotected expression. These sections cast a substantial chill on the expression of protected speech and are unconstitutionally overbroad and vague on their face. Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972); Lewis v. City of New Orleans, 415 U.S. 130, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974).
In Gertz v. Robert Welch, Inc., supra, the Supreme Court refused to extend the protection of the Times "actual malice" standard to the publisher of an allegedly defamatory statement against a private citizen. In so doing, the Court did not engage in "ad hoc" balancing of the "needs of the press and the individual's claim to compensation for wrongful injury." 418 U.S. at 343-44, 94 S. Ct. at 3009.
Instead, the Court laid down "broad rules of general application . . . [which] treat alike various cases involving differences as well as similarities." The Court concluded that the New York Times rule states an "accommodation between this concern [of the press and broadcast media in immunity from liability] and the limited state interest present in the context of libel actions brought by public persons." Id. See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975) (Powell, J., concurring).
The type of "definitional balancing" applied in Gertz and Times recognizes that not all defamatory speech is protected by the first amendment. See Nimmer, the Right to Speak from Times to Time : First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 Calif.L.Rev. 935, 942-43 (1968). In essence, it is this type of "definitional balancing" which we have employed in Part II of this opinion when we concluded that the deliberate calculated falsehood does not enjoy constitutional protection even when made during the course of a political campaign and when it involves a proceeding by the Board rather than a civil defamation suit or criminal prosecution. Our conclusion then struck an "accommodation" between the legitimate interest of the state in protecting the electoral process and the "slight social value" associated with calculated falsehoods.
Facial overbreadth analysis involves a somewhat different approach than "definitional balancing." Overbreadth review is based on a determination of whether the language of the statute in question or the construction it has been given is susceptible of application to protected expression. Gooding, supra, 405 U.S. at 522, 92 S. Ct. 1103. See generally, Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970). In effect, it is a doctrine which recognizes that despite any legitimate state interest involved, the chilling effect on protected expression is too high a price to pay when the regulatory scheme has not been narrowly drawn. Such a doctrine "is, manifestly, strong medicine." Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973).
When considering standing to raise an overbreadth challenge, there is "no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22 (1965). Plaintiffs here have shown more than "allegations of a subjective chill." Laird v. Tatum, 408 U.S. 1, 13, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972). Vanasco and Ferris have already been subject to adverse decisions by the Board and Postel's proceeding before the Board has been stayed pending this litigation. All three plaintiffs alleged that they will be candidates for office in future elections. We feel that plaintiffs have demonstrated claims of "specific present objective harm or a threat of specific future harm." Laird v. Tatum, supra at 13-14, 92 S. Ct. at 2326. See also Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).
Our approach is similar to that followed by the Court in analyzing the "breach of the peace statutes" involved in Gooding and Lewis. See also Wiegand v. Seaver, 504 F.2d 303 (5th Cir. 1974), cert. denied, 421 U.S. 924, 95 S. Ct. 1650, 44 L. Ed. 2d 83 (1975). In those decisions the Court found that the very language of the statutes and the construction given them by the state courts produced a broader sweep than the constitutional definition of "fighting words." The Code's misrepresentation sections, while not involving "breach of the peace statutes" or "fighting words," are similarly deficient. The Board argues that the Code sections are narrowly drawn to regulate only unprotected calculated falsehoods. Although the challenged sections only mention "misrepresentation," § 472(a) of the Election Law describes "deliberate misrepresentations." Reading these two sections together, the Board contends that deliberate misrepresentation is the equivalent of Times "actual malice" and that any Board proceeding requires such a finding. We disagree with this argument. The sweeping nature of those sections is exemplified by their provisions. For example, "misrepresentation of any candidate's qualifications" (§ 6201.1(d)) includes among its prohibitions the use of "personal vilification" and "scurrilous attacks."
Like "attacks based on race, sex, religion or ethnic background" (§ 6201.1(c)) such expression may be offensive but by that fact alone it does not lose its constitutional protection. Cohen v. California, 403 U.S. 15, 22-23, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971). See also Tollett v. United States, 485 F.2d 1087, 1093 (8th Cir. 1973).
That these Code sections are susceptible to application to protected speech could not be more clearly demonstrated than by the construction given to them by the Board in the Vanasco and Ferris cases. While as to Ferris, the Board found that the campaign literature was utilized "with actual knowledge of its falsity or with reckless disregard of its falsity," as to Vanasco, the Board merely found that he had "misrepresented" his party endorsement. There was no finding that the misrepresentation was deliberate or that it was made with knowledge of its falsity or reckless disregard of the truth.
No limiting construction has been applied to these sections and we cannot do so. Gooding, supra, 405 U.S. at 520, 92 S. Ct. 1103; United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971).
It is not hard to see then, given the often difficult task of trying to define, for example, what a political candidate's "position" is on issues discussed during a campaign, that the term "misrepresentation" could be applied to almost all campaign speech. The candidate who wishes to avoid the consequences of a Code proceeding -- including the adverse publicity such a proceeding would ...