In my opinion the writ should issue, and I agree with the views expressed in the opinion prepared by Mr. Justice Traynor in this case with the exception of what is said therein relative to the holding in the majority opinion in Payroll Guaranty Assn. v. Board of Education, 27 Cal.2d 197 [163 P.2d 433, 161 A.L.R. 1300]. I adhere to the views expressed in my dissenting opinion in the last mentioned case, and for that reason, cannot concur unqualifiedly in the opinion prepared by Mr. Justice Traynor in the case at bar.
As I see the question presented here, it is whether or not the Legislature may authorize the use of school property as a civic center and at the same time place it within the power of the governing school board to deny permission for the use of said property to persons who may be affiliated with organizations which the Legislature has declared to constitute a subversive element. The effect of such legislation is to permit a prior censorship on the right of assembly and expression. In my opinion this cannot be done without violating the provisions of the First and Fourteenth Amendments to the Constitution of the United States. The First Amendment unqualifiedly guarantees freedom of speech and freedom of assembly. No restriction on the exercise of these rights is mentioned in the Constitution or the amendments thereto. The restrictions which have been placed upon these rights are found in the judicial decisions interpreting the provisions above mentioned. In Schenck v. United States, 249 U.S. 47, at page 52 [39 S.Ct. 247, 63 L.Ed. 470], Mr. Justice Holmes said: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck’s Stove & Range Co., 221 *557U.S. 418, 439 [31 S.Ct. 492, 55 L.Ed. 797]. The question in every ease is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” The clear and present danger rule has been followed and applied by the Supreme Court of the United States in numerous decisions in the interpretation of statutes designed to proscribe the rights of freedom of speech and of assembly under varying circumstances and conditions. The trend of these decisions as disclosed by the citations thereof in the opinion prepared by Mr. Justice Traynor in this case is toward a more liberal application of the provisions of the First and Fourteenth Amendments of the Constitution of the United States to the end that freedom of speech and of assembly may not be denied to persons because of their affiliation with organizations declared by a state to constitute a subversive element. This thought was clearly expressed by Chief Justice Hughes in De Jonge v. Oregon, 299 U.S. 353 [57 S.Ct. 255, 81 L.Ed. 278], where he said: “We are not called upon to review the findings of the state court as to the objectives of the Communist Party. Notwithstanding those objectives, the defendant still enjoyed his personal right of free speech and to take part in a peaceable assembly having a lawful purpose, although called by that party.”
I can see no escape from the proposition that if membership in or affiliation with an organization declared to constitute a subversive element does not deprive one of his right to freedom of speech or of assembly, it is then beyond the power of the Legislature to authorize restrictions against the use of school property which will prevent such persons from using such property in the same manner as other members of the public may be permitted to use the same in the exercise of their rights of speech and assembly.