Talley v. California

Mr. Justice Harlan,

concurring.

In judging the validity of municipal action affecting rights of speech or association protected against invasion by the Fourteenth Amendment, I do not believe that we can escape, as Mr. Justice Roberts said in Schneider v. State, 308 U. S. 147, 161, “the delicate and difficult task” of weighing “the circumstances” and appraising “the substantiality of the reasons advanced in support of the regulation of the free enjoyment of” speech. More recently we have said that state action impinging on free speech and association will not be sustained unless the governmental interest asserted to support such impingement is compelling. See N. A. A. C. P. v. Alabama, 357 U. S. 449, 463, 464; Sweezy v. New Hampshire, 354 U. S. 234, 265 (concurring opinion); see also Bates v. Little Rock, 361 U. S. 516.

Here the State says that this ordinance is aimed at the prevention of “fraud, deceit, false advertising, negligent use of words, obscenity, and libel,” in that it will aid in the detection of those responsible for spreading material of that character. But the ordinance is not so limited, and I think it will not do for the State simply to say that the circulation of all anonymous handbills must be suppressed in order to identify the distributors of those that may be of an obnoxious character. In the absence of a more substantial showing as to Los Angeles’ actual experience with the distribution of obnoxious handbills,* such a *67generality is for me too remote to furnish a constitutionally acceptable justification for the deterrent effect on free speech which this all-embracing ordinance is likely to have.

On these grounds I concur in the judgment of the Court.

On the oral argument the City Attorney stated:

"We were able to find out that prior to 1931 an effort was made by the local Chamber of Commerce, urging the City Council to do *67something about these handbills and advertising matters which were false and misleading — had no names of sponsors. They were particularly interested in the fictitious name. They said, ‘Who are these people that are distributing; who are advertising; doing things of that sort?’ The meager record that we were able to find indicates that a request from the Council to the City Attorney as to their legal opinion on this subject [sic]. The City Attorney wrote back and formed the conclusion that distribution of handbills, pamphlets, or other matters, without the name of the fictitious firm or officers would be legal [sic]. Thereafter in the early part of 1932 an ordinance was drafted, and submitted to the City Council, and approved by them, which related to the original subject — unlawful for any person, firm or association to distribute in the city of Los Angeles any advertisement or handbill — or any other matter which does not have the names of the sponsors of such literature.”