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 constitutlon-
alitg   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”.   Sec-
tion 1 of the Bill       recites     that it is “the duty of the govern-
ment 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     vlola-
tlons    of the laws of Texas”.

          Section     2 of the Act requires    registration     with the
Secretary   of State of “every person,       firm,    partnership,   corpora-
tion 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 actl-
vlties     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 integra-
tion 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    refer-
red to as a so-called     “segregation”     measure,    it is noted that
its provisions,   generally,    apply alike    to those advocating
either  “racial  segregation”     or racial   integration”.

          We think it clear,    despite    the presence    in both Sec-
tions   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 exer-
cise of these ~I;wobasic    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.     16 C.J.S.    1111,
Sec. 213( 7) . The question       with which we are here concerned           is
not whether the Legislature         has such
means which it has employed conflict            ~~;~;:rW;~~hga~~or
                                                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, arbi-
          trarily    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 pro-
          hibited    from speaking because         they may say some-
          thing which will lead to disorder.”                16 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 pre-
          sence    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        con-
tingencies    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 coun-
sel 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
the peace but apply to advocshcg~which              waEhr;;y      a principal
function     or activity      and sue    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 reason-
ably 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 reason-
          able 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.
                                                             Assistant
          REVIEWEDFOR ATTORNEYGENERAL
          BY George P. Blackburn
          LP:zt
