Honorable Wardlow Lane, Chairman

State Affairs Committee Texas Senate AustIn, Texas Opinion No. WW-140 HE: Constitutionality of House Bill No. 

### 239 Dear Senator Lane:

Your letter dated May

### 7,1957, andreceived in this office onMaylOth, requests an opinion as to the constitutlonalitg of House Bill No. 239nowpending before the State Affairs Committee of the Senate.

The caption of said Bill recites apurpose “to promote Interracial harmony and tranquility andto that end to declare It to be the public policy of the State that the right of all people to be secure from interracial tension andunrest is vital to the health, safety andwelfare of the State”

. Section 1of the Bill recites that it is “the duty of the government of the State to exercise all available means and every power at Its commandto prevent the same so as to protect its citizens from any dangers, perils andviolence whFchwould result from interracial tension and unrest andpossible vlolatlons of the laws of Texas”

.

Section 2of the Act requires registration with the Secretary of State of “every person, firm, partnership, corporation or association, whether by or through its agents, servants, employees, officers, or voluntary workers or associates whoor which : 1. Engages as one of its principal functions or actlvlties the advocating of racial inter&ration or segregation, or



### 2. Whoseactivities opposing or favoring segregation of races cause or tend to cause racial conflicts or violence, or



### 3. Whoor which Is engaged or engages in raising or expending funds for the employment of counsel or payment of costs in connection with litigation inbehalf of racial integration color; (Emphasis added).Hon. Wardlow Lane, page 2 (WW-140)

Section 2further provides: 1,

. . . that nothing herein shall apply to the right of the people peaceably to assemble andto petition the government for aredress of grievances, or to an Individual freely speaking or publishing onhis own behalf in the expression of his o;Jlnion and engaging in noother activity subject to the provisions hereof andnotacting in concert with other persons.” Section 

### 3sets out in detail the information that shall be supplied with such registration.

Section 4makes the registration rec@rds onfile in the Secretary of State’s Office open to public inspection.

SectIon 5;.prescrlbes penalties for violation of the Act. Section 9of the Act provides:

“Sec. 9. This Act shall not apply to persons, firms, partnerships, corporations or associations whoor which carry on such activity or business solely through the mediumof newspapers, periodicals, magazines or other like means-which are or maybe admitted under United States postal regulatlons as second-class mail matter In the United States mails as defined in Title 39, 224, United States Code Annotated, and/or through radio, television or facsimile broadcast or wire service operations. This Act shall also not apply to any person, firm, partnership, corporation, association, organization or candidate in any political election campaign, or to any committee, association, organization or group of persons acting together because of activities connected with any polltical campaign.” Although the Bill in question has been popularly referred to as aso-called “segregation” measure, it is noted that its provisions, generally, either “racial segregation” apply alike to those advocating or racial integration”

. Wethink it clear, despite the presence in both Sections 2and9of provisions limiting the effects of the Bill upon freedom of speech and freedom of press, that the Bill in question places certain restrictions andburdens uponthe exercise of these ~I;wo basic freedoms’as guaranteed byboth the State andFederal Constitutions.Hon. Wardlow Lane, page 3 (WW-140)

Theprimary question before us Is whether the Bill may be upheld as alegitimate exercise of the police power of the State. It is well established in both our State andFederal law that the constitutional guarantees of freedom cf speech and of the press donot deprive the State of Its right to enact laws in the ligitimate exercise of the police powers, andpursuant to such power, reasonable regulations of speech and press may be adopted in order to promote, the general welfare, public health, public safety and order, or morals. Sec. 213(7)

. 16C.J.S. 1111,

Thequestion with which weare here concerned is not whether the Legislature has such ~~;~;:rW;~~hga~~or means which it has employed conflict wit Federal Constitutions. Dennis v United States, 1951, 341 U.S. 494. Thegeneral rule with reference to the authority of the State to restrict freedom of speech and of press, has been stated as follows:

“The power of the State to abridge freedom of speech and of the press Is the exception rather than the rule, and the Legislature may not, under the guise of the police power, arbitrarily or unnecessarily interfere with the freedom of speech and of the press, nor maythe Legislature prevent the fair use of the opportunity for free political discussion, to the end that government maybe responsive to the will of the people and that changes maybe effected through lawful means. AState maynot suppress free communication of views, religious or other, under the guise of conserving desirable conditions.

. . .Thefundamental right to speak cannot be abridged because other persons ,threaten to stage ariot or because peace officers believe or are afraid that breaches of the peace will occur if rights are exercised. Speakers maynot be prohibited from speaking because they may thing which will lead to disorder.” say some16C.J.S. 1114, Sec. 213(7) and cases there cited. The case of ExParte Meck,el, (Crim. App., 1919) 220 S.W. 81, concerned the constitutional validity of a so-called

“Disloyalty Statute” enacted by the Texas Legislature during World WarI. Transposing the phrases of the Act, the court stated that the pertinent provisions thereof would read:

“If any person in t.imeof war, in the presence andhearing of another person
. . . use any. .

Hon. Wardlow Lane, page 4 (WW-140) - - _

language ~. . .which language

. . . is of such nature askthat in case it is said in the presence andhearing of acitizen of the United States, it is reasonably calculated to provoke abreach of the peace, such person shall be’guilty of afelony, etc.

. . ,” In declaring the foregoing provisions of the Act as being violative of the Bill of Rights the court said:

“It seems too clear for discussion further, that the gravamen of the offense thus crea.ted is the use of lsnguage of such nature as that in case it is uttered in the presence of acitizen of our country it would likely cause abreach of the peace, and that the terms of said section are so framed as to penalize one whoutters language of such natI,lre, whether or not samebe used under circumstances or in such presence as to makesame reasonably provocative of abreach of the peace.r In light of the foregoing authorities, andparticularly in light of the case last above cited by the Texas Court of Criminal Appeals, let us examine the provisions of Section 2of House Bill No. 239. Said section requires the registration of designated persons, groups ,etc
., in any of three stated contingencies as follows:

1. If the advocacy of racial integration or segregation constitutes aprincipal function or activity; or

2. If such actS,vities cause or tend to cause racial conflicts or violence; or ---

3. If such persons, firms, etc., are engaged, or engages, in raising or expending funds for employment of counsel or payment of costs in connection with litigation inbehalf of racial integration color.

It is readily apparent that the first two contingencies, requiring registration are not limited to such advocacy or activities as are reasonably calculated to provoke abreach of function or activity and sue the peace but apply to advocshcg~which waEhr;;y aprincipal activities as caused or tended to cause racial conflicts or violence. 11as so written is not 4:

imited to such advocacy or activities which are reasonably calculated to create the alleged evils which the Bill seeks to correct or prevent andhence, it cannot be supported under the police powers of the State. It is not necessary for_. .- .

Hon. Wardlow Lane, page 

### 5 (W-140)

us to decide whether the provision could be so revised as to render sameconstitutional in all its provisions. American Federation of Labor'v. Mann, 

### 188S.W. 2d

### 276.

Theprovision of Section 2, which provides that those "who or which is engaged or engages in raising or expending funds for the employment of counsel or payment of costs in connection with litigation in behalf of racial integration color' poses asomewhat different question. The courts have displayed amore lenient attitude toward those statutes which require registration by persons, firms or organizations who or which undertake the public collection of funds or securing subscriptions. Reasonable registration or identification in such cases is generally permitted. Communist Party of U.S. v. Subversive Act. Con. Bd., 223F. 26

### 531;Thomasv. Collins, 323U.S. 516. Apart from the vagueness and uncertainty of the language used in said provision, it is our view that samecould not be sustained uponthe basis of being areasonable requirement inasmuch as it applies with equal effect tounds expended as well as funds collected. Hence, it would restrict individuals and others namedin the expenditure of purely personal or private funds for a lawful purpose. As to whether the provision is reasonable and can be sustained in other respects wedonot here decide.

In the interest of brevity wedonot undertake a discussion of other legal questions which arise in connection with the Bill.

You are, therefore, advised that in our opinion, House Bill No. 239, for reasons stated, violates both our State and Federal Constitutions andhence is unconstitutional. SUMMARY House Bill 239, violates freedom of speech and freedom of press as guaranteed byboth our State and Federal Constitutions andhence is unconstitutional. APPROVED: Yours very truly, OPINIONCOMMITTEE James N. Ludlum, Chairman WILLWILSON Robert 0. Smith Attornejl General ofjTexas John H.Minton -d-L W.V. Geppert J. C. Davis, Jr. REVIEWED

FORATTORNEY

GENERAL Assistant BYGeorge P. Blackburn LP:zt