I concur in the conclusion or judgment reached in the opinion of Mr. Chief Justice DAVIS, but I reach the conclusion by a different route.
I think the provisions of Section 5925 R. G. S., 8189 C. G. L., contravene the guarantees of Section 13 of the Declaration of Rights as contained in our State Constitution as to liberty of speech and press and also violates the Fourteenth Amendment to the Federal Constitution, both because of its denial of liberty and because of being so vague and uncertain as to propose to deprive one of liberty without due process of law.
As I view the statute, it is penal in character, and, therefore, must be strictly construed, if it is to be construed as having force and effect. Strictly construed, it denies to every person and the press the right to circulate truthful, adverse information as well as false adverse information about any candidate for office within the eighteen days next prior to any primary election wherein such candidate is participating as a candidate, unless the person and each person making or in anywise circulating the statement shall have furnished such candidate a written or printed copy thereof at least eighteen days prior to such election, and this regardless *Page 623 of how patriotic and bona fide the motive for the making of such adverse statement may be and regardless of whether or not the alleged facts were within the knowledge of the person making the statement at a time more than eighteen days before the election or whether or not the alleged facts occurred within eighteen days before the election. The effect would be to keep from the public and from the electors matters and things which they have the right to know and also have the right to discuss among themselves.
The statute does not condemn false or malicious charges or attacks only, but it as effectually attempts to prohibit the dissemination of the truth if such truth embraces a charge or attack on the candidate.
We might indulge in some preachment concerning the sacred right to free speech and freedom of the press, but this is hardly the place for such. It is enough to say that in our humble judgment this statute proposes to abridge both without lawful justification. Many offenses against human liberty have been perpetrated and perpetuated by the State and the Nation in the name of and under the guise of police power. This statute is but another attempt of the undue invoking of the police power.
Aside from this, I consider the statute void as violating the due process of law provision of the Constitution because of being indefinite and uncertain. The language of the statute is:
"Circulating Charges against any candidate within eighteen days of primary; copy delivered to candidate attacked. — It shall be unlawful for any candidate or other person, during the eighteen days next preceding the day of a primary election to publish or circulate, or cause to be published or circulated, any charge against or attack upon any candidate, unless a copy of such charge or attack has been personally served upon the candidates against whom made at least *Page 624 eighteen days prior to the day of the primary, and any person publishing or circulating such charge or attack without a copy of the same having been personally served upon the person against whom the charge or attack is made, as herein required, shall be punished by a fine of not exceeding one thousand dollars, or be imprisoned not exceeding one year, or be punished by both such fine and imprisonment. Any answer to a charge or attack that contains only defensive matter shall not be construed to be a charge or attack."
The statute neither defines nor establishes a standard of guilt. What is a charge or attack against a candidate? Who is to determine whether or not a statement constitutes a charge or attack? There is no answer to be found in the Statute. If one says in Duval County that candidate for the office of Governor is in favor of the large counties of the State the result would probably be favorable to the candidate, but if the same person persuaded the electors of Glades or of Liberty County that such was a fact he would probably be considered by the candidate as being quite adverse to him. What might be considered a most desirable characteristic to be found in a candidate in one community might be considered most damning to him in another. There are precincts in this State where the statement that a candidate is a member of the Anti-Saloon League or a member of certain secret orders, would constitute a most effective charge and attack on him, while in other precincts the same statement would prove very helpful and be considered a friendly indication. So what might be a criminal offense in one locality would probably be an act of kindness and entirely lawful when done in another locality. A penal statute which is so vague and indefinite, I think, is void. So, I concur in the judgment that the petitioners be discharged.
ELLIS, J., concurs. *Page 625