I concur in the views expressed in the opinion prepared by Mr. Justice Traynor, but I am also of the opinion that the writ should issue compelling the board of education to grant the permit for the use of the auditorium without the requirement that petitioner furnish to said board a policy of public liability insurance, for the reason that, in my opinion, the attempted classification of organizations contained in the resolution adopted by said board on September 28, 1943, constitutes an unreasonable and discriminatory regulation which purports to repose in said board unlimited discretion to determine which “organizations, clubs or associations,” are “organized for general character building, welfare purposes, or in connection with the national war effort,” and thus may be exempted from the requirement of furnishing such a policy. Hence, the power to censor is thus lodged in the members of the board. This opens the door to permit the board to discriminate in favor of organizations and groups which they like and against those they do not like. Such discrimination is in direct violation of the constitutional guarantees of freedom of speech and assembly. The constitutional mandate which confers these rights contemplates that they should be exercised without discrimination. It does not mean that they may be exercised freely by some and that others may exercise them only after complying with burdensome restrictions, even if such restrictions are such that may be complied with. On the right to give expression to ideas there should be no restrictions except when elements of clear and present danger exist.
It may be true that the Legislature was under no constitutional obligation to dedicate school buildings as civic centers in which citizens and groups may hold public meetings, but once the Legislature made that dedication, the use to be *331made by the people in conducting public meetings at such civic centers may not be subject either to censorship, arbitrary action or unconstitutional restrictions by the governing boards of education.
The constitutionality of a regulation having the tendency to abridge freedom of speech or assembly should be judged by the opportunities for censorship and discrimination inherent in it, and not alone by the regulation in actual administration. In Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352], in discussing the provisions of a statute regulating the solicitation of funds by religious organizations, the Supreme Court said:
“But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.” (See, also, Largent v. Texas, 318 U.S. 418 [63 S.Ct. 667, 87 L.Ed. 873]; and Murdock v. Pennsylvania, 319 U.S. 105 [63 S.Ct. 870, 891, 87 L.Ed. 1292, 146 A.L.R. 81].)
When the case of Hague v. C. I. O., 307 U.S. 496 [59 S.Ct. 954, 83 L.Ed. 1423], was pending before the Supreme Court of the United States, the American Bar Association’s Special Committee on the Bill of Rights filed an amici curiae brief in support of the contention of the Committee for Industrial Organization. A summary of this brief is contained in 25 American Bar Association Journal commencing at page 7. After analyzing the decisions relative to the right of cities and public boards to exercise control over public property, the brief contains the following discussion which is applicable to the problem here involved. I quote from page 74 of said Journal:
“The true analogy to government ownership of parks and other property dedicated to public uses is furnished by a public utility, which must give service to all so long as this is consistent with the performance of its functions. It can regulate, but not discriminate. It can refuse to deal with those who interfere with its functions or with other users of its service, or when the available services are exhausted. We already recognize this principle as applied to governmental substitutes for private utilities. Thus a municipal street railway can eject ‘drunks’ and set a limit on overcrowding, but nobody contends that it can refuse to trans*332port members of, unpopular groups even if other passengers express a dislike for them.
“In the same way, the parks can be regulated in a manner consistent with their purposes, one of the most important of which is the right of free assembly therein for public discussion at reasonable times and places. Disorderly persons can be excluded, because they interfere with peaceable users of the parks like drunks in the municipal trolley car. Open-air meetings can be assigned to a particular park or a particular area, just as passengers can be assigned to particular seats or told to move away from the door. If all the available space is occupied and there is no more room for meetings, permits can stop, just as a full municipal street car can refuse to take on passengers. But we submit that law-abiding Democrats or Republicans or Communists or unionists or members of the American Civil Liberties Union can no more be constitutionally kept out of empty park spaces reasonably suitable for open-air meetings than they can be ejected from an empty municipal trolley car, or be refused current from a municipal power plant.
“In sum, a city is required to furnish its municipal services to all, subject only to reasonable rules. Surely this principle is no less applicable when those services include the making available of space for open-air meetings, in pursuance of the right of assembly that is guaranteed by the Constitution of the United States.
“The basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this means talk for all and by all. ...”
The First Amendment to the Constitution of the United States was adopted because of the fear of the people that those in power might attempt by law to prohibit the free exercise of the right to worship or abridge ‘ ‘ freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The people of that generation had witnessed the abuse of power by many of those in whom it was reposed. Washington knew, as few men did, that the inherent danger which threatened the overthrow of constitutional liberties was, as he said, “the love of power and proneness to abuse it, which predominates in the human heart,” ever tempting the administrators of law and justice to override the constitutional guarantees of human rights. It finally required the adoption *333of the Fourteenth Amendment to extend to the people of the several states the rights guaranteed by the First Ten Amendments. But still the abuse of power continued and will continue so long as those who are permitted to exercise it are swayed by considerations other than those of justice, fairness and equality.
It has been said that: “Power is a bell which prevents those who set it pealing from hearing any other sound.” In the last analysis it is for the courts to declare the extent to which administrative power may be exercised in the light of the constitutional and statutory provisions fixing the limits of such power.
EDMONDS, J.Considering the record in this proceeding, I find no basis for the conclusion that the court is not concerned “with the board’s authority to insure the district against . . . [public liability with respect to its school buildings and- grounds when used for purposes specified in the Civic Center Act] (see Ed. Code, § 1029) or with the exercise of its discretion in determining whether such insurance is necessary, but only with the question whether the board can require others to pay the costs of such insurance.” In connection with the demands of the petitioner for the use of the auditorium, there had been filed with the Board of Education an affidavit made by Paul Schnur in behalf of various organizations affiliated with the San Francisco Industrial Union Council and 13 others, including the San Francisco Federation of Voters Leagues and the National Association for the Advancement of the Colored People. There is widespread conviction among the thousands of members in these organizations, the affiant declared, that the program of Gerald L. K. Smith is intended “to incite to violence by setting race against race, religion against religion, white against black, in an atmosphere of hatred and violence ... all in order to create riots, terror and chaos ...” According to the affidavit of Schnur, the people represented by him “have read of the riots which followed close upon . . . [the] public meetings and speeches [of Smith] in such cities as Detroit, New York and Los Angeles; . . . [and] will not allow Smith to conduct a campaign of terror and violence without protest . . .”
"With this affidavit before it, the board of education was confronted with the question as to its liability for injury to persons or property in the event that it granted the applica*334tion for the use of the school auditorium and there was a riot or other violence. Mr. Justice Traynor discusses that liability solely from the the standpoint of responsibility for negligence in connection with the maintenance or use of the building. But there may be liability without fault. The doctrine is applicable, it is said, “where, even though the defendant’s conduct is socially desirable, the danger which it threatens to others is unusually great, and will be great even though the enterprise is conducted with every possible precaution. Because of the unusual gravity of the risk, he is held liable for acts which in themselves are regarded as reasonable. The basis of liability is his intentional behavior in exposing the community to such a risk. The conduct which is dealt with here occupies a middle ground; it is conduct which has so múch social utility that it will not be treated as wrongful in itself, and will not be prohibited or enjoined in advance, but not so much that the defendant may be allowed to carry it on without liability at the expense of actual damage to his neighbors.” (Prosser on Torts, p. 429.)
The application of the organization sponsoring Smith to use the school property came to the board of education with at least a prima facie showing that there had been riots at meetings of a similar character held in other cities and the consequent possibility of suits for damages in the event of violence at a meeting addressed by Smith in the Commerce High School. Under these circumstances, the requirement of the board for public liability insurance is not an unreasonable one. A majority of the court impliedly, if not directly, so hold, but they say that if such insurance is necessary, the premium for the policy must be paid by the school district as an expense specified in section 19439 of the Education Code. However, the board of education has no authority to procure public liability insurance with full coverage against responsibility for injuries to persons or property. Under the Education Code the district may only insure its liability and the personal liability of the members of the board “for damages by reason of death, or injury to person or property, as the result of any negligent act.”. (Italics added). (§1029.) Accordingly, by the decision of this court, the Board of Education is required to allow the use of school property for a meeting which, there is reasonable ground to believe, may result in violence or riot, but it cannot protect its members or the district with liability insurance for *335the benefit of the public except as a private undertaking at private expense.
No one has an absolute right to hold a meeting in a public school, and the Legislature has declared that the use of any public school house and grounds “is subject to such reasonable rules and regulations as the governing board of the district prescribes.” (Ed. Code, § 19433.) Free speech is one of our most cherished constitutional rights but it is subject to certain limitations. For example, as Mr. Justice Holmes laconically stated, the right of free speech does not permit one falsely to cry “Fire” in a crowded theatre. (Schenck v. United States, 249 U.S. 47 [39 S.Ct. 247, 63 L.Ed. 470].)
For these reasons, in my opinion, the writ of mandate should be denied.