Honorable Wardlow Lane, Chairman 

State Affairs Committee 

Texas Senate 

Aust In, Texas Opinion No. WW-140 

HE: Constitutionality of 

House Bill No. 239 

Dear Senator Lane: 

Your letter dated May 7, 1957, and received in this 

office on May lOth, requests an opinion as to the constitutlonalitg of House Bill No. 239 now pending before the State 

Affairs Committee of the Senate. 

The caption of said Bill recites a purpose “to promote 

Interracial harmony and tranquility and to 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 and unrest is 

vital to the health, safety and welfare of the State”. Section 1 of the Bill recites that it is “the duty of the government of the State to exercise all available means and every 

power at Its command to prevent the same so as to protect its 

citizens from any dangers, perils and violence whFch would 

result from interracial tension and unrest and possible vlolatlons of the laws of Texas”. 

Section 2 of 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 who or 

which : 

1. Engages as one of its principal functions or actlvlties the advocating of racial inter&ration or segregation, or 

2. Whose activities opposing or favoring segregation 

of races cause or tend to cause racial conflicts or violence, or 

3. 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; (Emphasis added). 
Hon. Wardlow Lane, page 2 (WW-140) 

Section 2 further provides: 

1, 

. . . that nothing herein shall apply to the right 

of the people peaceably to assemble and to petition 

the government for a redress of grievances, or to an 

Individual freely speaking or publishing on his own 

behalf in the expression of his o;Jlnion and engaging 

in no other activity subject to the provisions hereof 

and notacting in concert with other persons.” 

Section 3 sets out in detail the information that shall 

be supplied with such registration. 

Section 4 makes the registration rec@rds on file in the 

Secretary of State’s Office open to public inspection. 

SectIon 5; .prescrlbes penalties for violation of the 

Act. 

Section 9 of the Act provides: 

“Sec. 9. This Act shall not apply to persons, 

firms, partnerships, corporations or associations 

who or which carry on such activity or business 

solely through the medium of newspapers, periodicals, 

magazines or other like means -which are or may be 

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 a so-called “segregation” measure, it is noted that 

its provisions, generally, 

either “racial segregation” 

apply alike to those advocating 

or racial integration”. 

We think it clear, despite the presence in both Sections 2 and 9 of provisions limiting the effects of the Bill 

upon freedom of speech and freedom of press, that the Bill in 

question places certain restrictions and burdens upon the exercise of these ~I;wo basic freedoms’as guaranteed by both the 

State and Federal Constitutions. 
Hon. Wardlow Lane, page 3 (WW-140) 

The primary question before us Is whether the Bill may 

be upheld as a legitimate exercise of the police power of the 

State. It is well established in both our State and Federal law 

that the constitutional guarantees of freedom cf speech and of 

the press do not deprive the State of Its right to enact laws 

in the ligitimate exercise of the police powers, and pursuant 

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) . 

16 C.J.S. 1111, 

The question with which we are here concerned is 

not whether the Legislature has such 

means which ~~;~;:rW;~~hga~~or it has employed conflict wit 

Federal Constitutions. Dennis v United States, 1951, 341 U.S. 

494. 

The general 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 may the 

Legislature prevent the fair use of the opportunity 

for free political discussion, to the end that 

government may be responsive to the will of the 

people and that changes may be effected through 

lawful means. A State may not suppress free 

communication of views, religious or other, under 

the guise of conserving desirable conditions. 

. . . The fundamental right to speak cannot be 

abridged because other persons ,threaten to stage 

a riot or because peace officers believe or are 

afraid that breaches of the peace will occur if 

rights are exercised. Speakers may not be prohibited from speaking because they may 

thing which will lead to disorder.” 

say some16 C.J.S. 

1114, Sec. 213(7) and cases there cited. 

The case of Ex Parte 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 War I. Transposing the phrases of the Act, the court 

stated that the pertinent provisions thereof would read: 

“If any person in t.ime of war, in the presence and hearing of another person . . . use any 
. . 

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

- - _ 

language ~. . . which language . . . is of such 

nature ask that in case it is said in the presence 

and hearing of a citizen of the United States, it 

is reasonably calculated to provoke a breach of 

the peace, such person shall be’guilty of a felony, 

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 a citizen 

of our country it would likely cause a breach of 

the peace, and that the terms of said section are 

so framed as to penalize one who utters language 

of such natI,lre, whether or not same be used under 

circumstances or in such presence as to make same 

reasonably provocative of a breach of the peace.r 

In light of the foregoing authorities, and particularly 

in light of the case last above cited by the Texas Court of 

Criminal Appeals, let us examine the provisions of Section 2 of 

House Bill No. 239. Said section requires the registration of 

designated per sons, groups , et c . , in any of three stated contingencies as follows: 

1. If the advocacy of racial integration or segregation 

constitutes a principal 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 in behalf 

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 a breach of 

function or activity and sue 

the peace but apply to advocshcg~which waEhr;;y a principal 

activities as caused or tended 

to cause racial conflicts or violence. 11 as 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 and hence, 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 same constitutional in all its provisions. American 

Federation of Labor'v. Mann, 188 S.W. 2d 276. 

The provision 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 a somewhat different question. The courts have 

displayed a more 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., 223 F. 26 531; Thomas v. Collins, 

323 U.S. 516. Apart from the vagueness and uncertainty of 

the language used in said provision, it is our view that 

same could not be sustained upon the basis of being a reasonable requirement inasmuch as it applies with equal effect 

tounds expended as well as funds collected. Hence, it 

would restrict individuals and others named in 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 we do not here decide. 

In the interest of brevity we do not 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 and hence is unconstitutional. 

SUMMARY 

House Bill 239, violates freedom 

of speech and freedom of press as 

guaranteed by both our State and 

Federal Constitutions and hence is 

unconstitutional. 

APPROVED: Yours very truly, 

OPINION COMMITTEE 

James N. Ludlum, Chairman WILL WILSON 

Robert 0. Smith Attornejl General ofj Texas 

John H. Minton -d-L W. V. Geppert 

J. C. Davis, Jr. 

REVIEWED FOR ATTORNEY GENERAL Assistant 

BY George P. Blackburn 

LP:zt