Citations
- 276 Cal. App. 2d 649
Full opinion text
superior court which denied his petition for a writ of prohibition to restrain respondent municipal court and the People, as real party in interest, from proceeding in a pending criminal action in which he is charged with five counts of vagrancy in violation of section 653g of the Penal Code. He contends that section 653g is unconstitutional because of overbreadth and vagueness, and that respondent court erred in overruling his demurrer because the facts stated in the complaint “du not constitute a public offense” (Pen. Code, § 1004, subd. 4) and reveal “matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution” (id. subd. 5). Amicus curiae urges the unconstitutionality of the statute and joins in the contention that the facts stated show that petitioner was engaged in conduct which is protected by the First and Fourteenth Amendments of the United States Constitution.
The People throughout have insisted on the constitutionality of the statute. They acknowledge that as heretofore sustained the statute requires that the violator act with a purpose or intent of effectuating some criminal act, and, on appeal for the first time, they suggest that such criminality may be found because the petitioner was contributing to the delinquency of minors (Pen. Code, § 272) by encouraging truancy. (See Ed. Code, §§ 12401-12410, and § 10609.)
It is concluded that the facts stated in the complaint fail to show a violation of section 653g as the provisions of that section have been construed in upholding them against attacks on constitutional grounds, and that they do show that petitioner was engaged in an activity which was protected by the provisions of the First and Fourteenth Amendment without giving any cause for exercise of the state interest in the protection of the public health and safety from the particular evil which is contemplated by the. provisions of section 653g. The judgment must" be reversed.
The Record
The petition sets forth a copy of the complaint filed on April 16, 1968 dn the Municipal Court for the Oakland-Piedmont Judicial District. Bach count réeites, ‘ ‘ The undersigned, being sworn, says on information and belief, that said defend-antis) did, in the [judicial district] on or about [various dates from March 1, 1968 to April 3, 1968] commit a, misdemeanor to wit: A violation of Section 653g of the Penal Code of California in that said defendant did then and there become a vagrant within the meaning of said section in that said defendant did loiter about a school and public place at and near which school children attend, to wit: [the counts embrace two incidents at one high school and three at another].” The complaint concludes with the following quotation: “ ‘A statement of the facts, which constitute probable cause for the issuance of a warrant based on this complaint, is attached hereto and incorporated by reference.’ ” (See Pen. Code, § 1427 ; People v. Sesslin (1968) 68 Cal.2d 418, 422-426 [67 Cal.Rptr. 409, 439 P.2d 321], cert. den. (1969) 393 U.S. 1080 [21 L.Ed.2d 722, 89 S.Ct. 850]; and People v. Chimel (1968) 68 Cal.2d 436, 440 [67 Cal.Rptr. 421, 439 P.2d 333] [revd. on other grounds (1969) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034] ].) The parties have assumed that the sufficiency of the complaint is to be determined from all of the facts set forth, including those in the “Crime Report” which is attached to the complaint and incorporated by reference. This court adopts the same assumption without determining whether the prosecution, if so minded, could renege and attempt to rely on the provisions of section 952 of the Penal Code in testing the sufficiency of the complaint, when it has gone farther than required by that section in order to obtain á warrant. (Cf. Ratner v. Municipal Court (1967) 256 Cal. App.2d 925, 928-929 [64 Cal.Rptr. 500].)
The report states that on 12 occasions between February 28, 1968 and April 3, 1968, petitioner has been on the campuses of two high schools in Oakland. It lists the vice-principal of one high school as the reporting party, and indicates that he has warned the petitioner to stay off the campus, has read the provisions of section 653g to the petitioner, and has observed the petitioner handing out anti-draft, leaflets. According to the report the vice-principal states that the petitioner has caused a disturbance in handing out the leaflets by having large groups of students gather around him on the campus (see fn. 3, above). Five other witnesses, including three police officers, of whom one made the report and signed the complaint, axe listed as having observed the petitioner carrying and passing out anti-draft leaflets. One, the vice-principal of the second high school, is noted as having told the petitioner a number of times to stay off the campus of that school. It is reported that petitioner did not comply with this request (see fn. 3, above) and that petitioner has read and signed a card stating that he has been informed of the loitering law. A leaflet of the type allegedly distributed, which is attached as a further exhibit, expresses opposition to the war in Vietnam, the selective service system and racism in America. It also states that anti-draft groups ‘ ‘are arranging a student strike and other activities against the war, the draft and racism for April 26 [the last Friday in April 1968].”
court was acting in excess of its jurisdiction. (Whitney v. Municipal Court (1962) 58 Cal.2d 907, 911 [27 Cal.Rptr. 16, 337 P.2d 80]; Lambert v. Municipal Court (1960) 53 Cal.2d 690, 691 [3 Cal.Rptr. 168, 349 P.2d 984]; Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 462-467 [171 P.2d 8]; Moore v. Municipal Court (1959) 170 Cal.App.2d 548, 551-554 [339 P.2d 196]; Kelly v. Municipal Court (1958) 160 Cal. App.2d 38, 46 [324 P.2d 990] [hearing hy the Supreme Court denied]; and see Burton v. Municipal Court (1968 ) 68 Cal.2d 684, 687 [68 Cal.Rptr. 721, 441 P.2d 281]; Pain v. Municipal Court (1968) 268 Cal.App.2d 151, 152 [73 Cal.Rptr. 862] ; and Gleason v. Municipal Court (1964) 226 Cal.App.2d. 584, 586 [38 Cal.Rptr. 226].) He alleged, “On the dates specified in said complaint petitioner was on the public sidewalk near the schools mentioned distributing leaflets and handbills criticizing the Selective Service System, racism in America, and the Vietnam war. Petitioner’s sole purpose and intention in being around said public schools was to deliver said handbills and leaflets to high school students. ’ ’ No answer to the petition was filed by respondent court or real party in interest. In response to the order to show cause issued on the filing of the petition, the district attorney filed a memorandum of law in which he requested that the writ be denied. After oral argument, the judgment ensued when the court found that the petition failed to state facts sufficient to constitute grounds for relief.
Petitioner properly asserts that under these circumstances the allegations of the petition must be taken as true. (Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 865, fn. 5 [34 Cal.Rptr. 251].) Nevertheless, since petitioner’s right to relief must depend on showing that further proceedings would be in excess of the jurisdiction of respondent court, for purposes of this review any factual issue must be resolved in accordance with the allegations of the complaint and the attached exhibit. It must be assumed that petitioner was on the campus of each school, and that he did not remain “on the public sidewalk near the schools” at all times. It is nowhere suggested, however, that this fact crucially affects criminal liability under section 653g. The second allegation concerning petitioner’s purpose and intent is not contradicted by but is consistent with, the fair import of the facts in the report.
Constitutionality and Construction of Section 653g
In re Huddleson (1964) 229 Cal.App.2d 618 [40 Cal.Rptr. 581] [hearing by the Supreme Court denied] sets forth this court’s ruling upholding the constitutionality of the provisions now found in section 653g, which were then found in subdivision 2 of section 647a (Stats. 1957, ch. 1735, §1, p. 3120). The problem with respect to the use of the word “loiter” was phrased as follows: “In the instant case, the challenges made to the constitutionality of the subdivision under attack center about the use of the word ‘loiter’ in the statute. In essence they assert that the word is of such a broad and all-embracing character as to encompass innocent as well as objectionable actions and thus impose an unreasonable proscription upon the conduct of the public at large. The word ‘loiter’ has been defined to mean ‘To be slow in moving; delay; linger; saunter; lag behind’ (Webster’s New International Dictionary (2d ed.); see State v. Starr (1941) 57 Ariz. 270 . . .) or ‘to linger idly by the way, to idle’ (Phillips v. Municipal Court (1938) 24 Cal.App.2d 453, 455 . . .), While taken by itself and in its broad meaning the term may carry no criminal implications, nevertheless as employed in a penal statute and considered in such statutory context, it may have a sinister, wrongful or criminal import. (In re Cregler, supra [1961] 56 Cal.2d 308, 311-312 [14 Cal.Rptr. 289, 363 P.2d 305]; People v. Merolla (1961) 9 N.Y.2d 62 . . .; People v. Bell (1953) 306 N.Y. 110 . . .; State v. Starr, supra; see Gleason v. Municipal Court (1964) 226 Cal.App.2d 584, 587. . . . Cf. People v. Bruno (1962) 211 Cal.App.2d Supp. 855, 860-861 ... in respect to the criminal implications of the term ‘wandering. ’) ” (229 Cal.App.2d at pp. 621-622.)
After reviewing various canons of construction the court ruled, “. . .we have therefore concluded that the term loiter in the context of the statute under consideration proscribes only that species of ‘lingering’ and ‘idling’ about schools or public places which is engaged in for an evil or sinister purpose. As pointed out above, section 647a was enacted to protect children. Subdivision (1) thereof makes guilty of a misdemeanor or felony as the case may be every person who annoys or molests any child under the age of 18 [reference to text of statute omitted]. Subdivision (2) provides additional protection for children by removing any opportunity for the child molester to carry out his evil purpose. Both subdivisions label the offender a ‘vagrant.’ Nevertheless it is obvious that the purpose of the first subdivision is largely punitive while that of the second subdivision is largely preventive. (See Perkins, The Vagrancy Concept, 9 Hastings L.J. 237, 250-261; Sherry, Vagrants, Rogues and Vagabonds, 48 Cal.L.Rev. 557, 566-567.) But, as we have said, the loitering condemned by the second subdivision is not loitering in its general sense but in its restricted and sinister sense. It includes lingering, waiting and delaying but only for a sinister or wrongful purpose and therefore excludes such activities for a lawful purpose-. ‘Loitering as forbidden includes waiting, but mere waitihg for any lawful purpose does not constitute such loitering.(In re Cregler, supra, 56 Cal.2d 308, 312.)
“Therefore as we construe the statute before us, persons who merely sit on park benches, loll on public beaches, pause in the vicinity of schools or linger in the many public areas frequented by children cannot be reasonably considered as loitering within the compass of the statute. It is only when the loitering is of such a nature that from the totality of the person’s actions and in the light of the prevailing circumstances, it may be reasonably concluded that it is being engaged in ‘for the purpose of committing a crime as opportunity may be discovered’ (In re Cregler, supra) that such conduct falls within the statute. We therefore hold that the term loiter has a clear and reasonably definite significance in the context of the statute, that it is not so vague and indefinite as to offend constitutional guaranties and that the statute so contrued does not invade, deny or abridge personal rights and liberties. It also follows that the statute as so construed possesses the required uniformity of operation to satisfy the mandate of article I, section 11, of the Constitution.” (Id., pp. 625-626.) Authorities upon which amicus curiae now relies were considered and distinguished. (Id., p. 627.)
A similar construction has been given the words “loaf or loiter ’ ’ in upholding the constitutionality of that portion of a municipal ordinance making it unlawful “to loaf or loiter in any waiting room, lobby, or other portion of any railway station” etc. (In re Hoffman (1967) 67 Cal.2d 845, 853 [64 Cal.Rptr. 97, 434 P.2d 353], See People v. Weger (1967) 251 Cal.App.2d 584, 591-593 [59 Cal.Rptr. 661] [hearing by the Supreme Court denied, and cert. denied (1968) 389 U.S. 1047 [19 L.Ed.3d 840, 88 S.Ct. 774] ] [upholding over the dissent of Herndon, J. the constitutionality of subdivision (e) of section 647 as adopted in 1961 (Stats. 1961, eh. 560, § 2, p. 1672)]; Gleason v. Municipal Court (1964) 226 Cal.App.2d 584, 587 [38 Cal.Rptr. 226] [upholding a municipal ordinance prohibiting loitering in any tunnel and other described places of similar nature, against attack on grounds that state legislation had preempted the field] Phillips v. Municipal Court (1938) 24 Cal.App.2d 453, 456 [see fn. 7] [75 P.2d 548] and People v. Bruno (1962) 211 Cal.App.2d Supp. 855, 860-861 [27 Cal.Rptr. 458] [upholding and applying subdivision (e) of section 647 as adopted in 1961] ; and Anderson v. Shaver (D.N.M. 1968 ) 290 F.Supp. 920 [upholding the constitutionality of an Arizona statute prohibiting “loitering about or on any. . . school. . .without lawful business there”].)
It is asserted that the use of the provision of section 653g to curb political dissent demonstrates that its provisions, as construed in In re Huddleson, are overly vague and that Huddle-son should be reviewed and overruled. The constitutional criteria for certainty are set forth in Katzev v. County of Los Angeles (1959) 52 Cal.2d 360 [341 P.2d 310] as follows: “Both the California Constitution, article I, section 13, and the Constitution of the United States, Fourteenth Amendment, provide that no person shall be deprived of life, liberty, or property without due process of law. Due process means that ‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. ’ (Lanzetta v. New Jersey, 306 U.S. 451, 453 . . .; In re Porterfield, 28 Cal.2d 91, 120. . . .)
‘ ‘ The standard to be applied is set forth in Connally v. General Const. Co., 269 U.S. 385, 391 . . .: ‘That the terms of a penal statute creating a new offénse must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess' at its meaning and differ as to its application, violates the first essential of due process of law.’ ” (52 Cal.2d at p. 370. See also, In re Newbern (1960) 53 Cal.2d 786, 792 [3 Cal. Rptr. 364, 350 P.2d 116]; and In re Davis (1966) 242 Cal. App.2d 645, 650 [51 Cal.Rptr. 702].)
If Huddleson is deemed to construe the provisions now found in section 653g as proscribing loitering for any “sinister or wrongful” purpose (see In re Hoffman, supra, 67, Cal.2d at p. 853, and In re Huddleson, supra, 229 Cal.App.2d at pp. 622, 623 and 625), there may be some merit to the objection raised by petitioner and amicus curiae. No criteria are suggested for a determination of what is sinister or what is wrongful. Under these circumstances the enforcement of the section may in effect turn on the proclivities of the authority evaluating the conduct of the suspect, and the former’s conception of what is sinister or wrongful.
In Suttlesworth v. Birmingham (1969) 394 U.S. 147 [22 L.Ed.2d 162, 89 S.Ct. 935] the court struck down a conviction under a city ordinance which made it an offense to participate in a parade or procession or other public demonstration without a permit, because the ordinance, as written and as the surrounding relevant circumstances showed it had been actually applied, “conferred upon the City Commission virtually unbridléd and absolute power to prohibit any ‘parade,’ ‘procession’ or ‘demonstration’ on the city’s streets or public ways.” (394 U.S. at p. 150 [22 L.Ed.2d at p. 167], See also Interstate Circuit v. Dallas (1968) 390 U.S. 676, 682-688 [20 L.Ed.2d 225, 230-234, 88 S.Ct. 1298]; Cox v. Louisiana (1965) 379 U.S. 536, 555-558 [13 L.Ed.2d 471, 484-486, 85 S.Ct. 453]; Saia v. New York (1948) 334 U.S. 558, 560 [92 L.Ed. 1574, 1577, 68 S.Ct. 1147]; Hague v. Committee for Industrial Organization (1939) 307 U.S. 496, 516 [83 L.Ed. 1423, 1437, 59 S.Ct. 954]; Burton v. Municipal Court (1968) 68 Cal.2d 684, 691-692 [68 Cal.Rptr. 721, 441 P.2d 281] ; and American Civil Liberties Union v. Board of Education (1961) 55 Cal.2d 167, 178-180 [10 Cal.Rptr. 647, 359 P.2d 45, 94 A.L.R.2d 1259].)
The court concluded, “Even when the use of its public streets and sidewalks is involved, therefore, a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade, according to their own opinions regarding the potential effect of the activity in question on the ‘welfare,’ ‘decency,’ and ‘morals’ of the community.” (394 U.S. at p. 153 [22 L.Ed.2d at p. 168], See also Schneider v. State (1939) 308 U.S. 147, 163-165 [84 L.Ed. 155, 165-166, 60 S.Ct. 146].)
So here petitioner urges that a construction of the ordinance which vests the law enforcement officer with the arbitrary power to determine what is “a sinister or wrongful purpose” and to arrest anyone who may be lingering, waiting or delaying if the officer concluded that the suspect has such purpose, is unconstitutionally vague and over broad because it places an unconstitutional censorship or prior restraint upon the enjoyment of the exercise of First Amendment freedoms. In the words of Justice Black, concurred in by Justice Douglas, in the concurring opinion in Gregory v. Chicago (1969 ) 394 U.S. 111, 118 [22 L.Ed.2d 134, 140, 89 S.Ct. 946], “The disorderly conduct ordinance under which these petitioners were charged and convicted is not, however, a narrowly drawn law, particularly designed to regulate certain kinds of conduct. ... To the contrary, it might better be described as a meat ax ordinance, gathering in one comprehensive definition of an offense a number of words which have a multiplicity of meanings, some of which would cover activity specifically protected by the First Amendment. The average person charged with its violation is necessarily left uncertain as to what conduct and attitudes of mind would be enough to convict under it.” (See also, Douglas J. with Warren, C.J., Brennan, J. and Fortas, J. dissenting in Adderley v. Florida (1966) 385 U.S. 39, 56 [17 L.Ed.2d 149, 161, 87 S.Ct. 242] ; Black, J. concurring in Cox v. Louisiana, supra, 379 U.S. 536, 579 [13 L.Ed.2d 487, 501, 85 S.Ct. 476]; and Thornhill v. Alabama (1940) 310 U.S. 88, 97-98 [84 L.Ed. 1093,1099-1100, 60 S.Ct. 736].)
It is also contended that the provisions of section 653g, as so construed, are overly broad in that the aim of the statute— to provide “additional protection for children by removing any opportunity for the child molester to carry out his evil purpose” (In re Huddleson, supra, 229 Cal.App.2d at p. be accomplished without prohibiting all loitering for what might arbitrarily be determined to be a sinister or wrongful purpose. (Cf. In re Huddleson, supra, 229 Cal.App. 2d at pp. 625 and 626, with Phillips v. Municipal Court, supra, 24 Cal.App.2d at p. 456 suggesting innocent acts may be prohibited.)
When a statute, ordinance, or regulation ‘ ‘ completely prohibits protected activities although a narrower measure would fully achieve the intended ends and at the same time preserve an effective place for the dissemination of ideas” its overbreadth may render it unconstitutional. (In re Hoffman, supra, 67 Cal.2d 845, 853. See also, Los Angeles Teachers Union v. Los Angeles City Board of Education (1969) 71 Cal.2d 551, 564 [78 Cal.Rptr. 723, 455 P.2d 827]; In re Anderson (1968) 69 Cal.2d 613, 636, fn. 1 [73 Cal.Rptr. 21, 447 P.2d 117] ; In re Berry (1968) 68 Cal.2d 137, 156, fn. 15 [65 Cal.Rptr. 273, 436 P.2d 273]; Katzev v. County of Los Angeles, supra, 52 Cal.2d 360, 367-368; Carroll v. President & Comrs. of Princess Anne (1968) 393 U.S. 175, 183 [21 L.Ed. 2d 325, 333, 89 S.Ct. 347, 353]; United States v. Robel (1969) 389 U.S. 258, 265-268 [19 L.Ed.2d 508, 514-516, 88 S.Ct. 419]; Zwickler v. Koota (1967) 389 U.S. 241, 249-250, [19 L.Ed.2d 444, 450-451, 88 S.Ct. 391] ; Keyishnan v. Board of Regents (1967) 385 U.S. 589, 602-604 [17 L.Ed.2d 629, 640-641, 87 S.Ct. 675]; Elfbrandt v. Russell (1966) 384 U.S. 11, 18-19 [16 L.Ed.2d 321, 325-326, 86 S.Ct. 1238]; Cox v. Louisiama, supra, 379 U.S. 536, 551-552 [13 L.Ed.2d 471, 482-483, 85 S.Ct. 453] ; Edwards v. South Carolina (1963) 372 U.S. 229, 236-238 [9 L.Ed.2d 697, 702-703, 83 S. Ct. 680] ; N.A.A.C.P. v. Button (1963) 371 U.S. 415, 431-438 [9 L.Ed.2d 405, 417-421, 83 S.Ct. 328]; Shelton v. Tucker (1960) 364 U.S. 479, 490 [5 L.Ed.2d 231, 238, 81 S.Ct. 247] ; Talley v. California (1960) 362 U.S. 60, 64-65 [4 L.Ed.2d 559, 562-563, 80 S.Ct. 536]; Saia v. New York, supra, 334 U.S. 558, 562 [92 L.Ed. 1574, 1578] ; and Thornhill v. Alabama, supra, 310 U.S. 88, 105-106 [84 L.Ed. 1093,1104] ; Schneider v. State, supra, 308 U.S. 147, 162 [84 L.Ed. 155, 165].)
On the other hand when a ‘‘statute on its face is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society . . . the fact that free speech is intermingled with such conduct does not bring with it constitutional protection.” (Cox v. Louisiana, supra, 379 U.S. 559, 564 [13 L.Ed.2d 487, 492] [upholding the constitutionality of a state statute prohibiting picketing and parading in or near a courthouse with the intent of interfering with, obstructing, or impeding the administration of justice, etc.]. See also, Cameron v. Johnson (1968) 390 U.S. 611, 617 [20 L.Ed.2d 182, 188, 88 S.Ct. 1335] [upholding the constitutionality of a state statute prohibiting picketing in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any county courthouse] ; Adderley v. Florida, supra, 385 U.S. 39, 44 [17 L.Ed.2d 149, 154] [upholding the constitutionality of a state malicious trespass law, and its application to demonstrators who refuse to leave that part of the jail grounds reserved for jail uses] ; Cox v. Louisiana, supra, 379 U.S. 536, 555 [13 L.Ed.2d 471, 484] [dicta]; Kovacs v. Cooper (1949) 336 U.S. 77, 85-89 [93 L.Ed. 513, 521-523, 69 S.Ct. 448, 10 A.L.R.2d 608] [upholding the constitutionality of an ordinance barring sound trucks from broadcasting in a loud and raucous manner on the streets]; People v. Davis (1968) 68 Cal.2d 481, 486 [67 Cal. Rptr. 547, 439 P.2d 651] [upholding the constitutionality of Penal Code, § 404.6] ; and Pain v. Municipal Court, supra, 268 Cal.App.2d 151,153 [unreasonable obstruction of a public street, Pen. Code, §§370 and 372].)
In re Huddleson suggests, and the principles set forth above require adoption of, a narrower construction of the ordinance. The court said, “We are of the opinion that the word ‘loiter’ was intended to proscribe lingering about schools and public places for the purpose or with the intent of effectuating some criminal act” (229 Cal.App.2d at p. 623, italics added), and it adopted from In re Cregler, supra, the phrase “ ‘for the purpose of committing crime as opportunity may be discovered. ’ ” (Id., at p. 625, italics added.) The approval of In re Cregler, supra, in In re Hoffman (67 Cal.2d at p. 853) permits and does not preclude the narrower construction.
The statute as so construed falls within the legitimate governmental interest in protecting children and controlling the public ways around schools and public places where children normally congregate. There remains for consideration the question of whether the facts alleged suggest or permit a finding that the petitioner was loitering, and that his loitering was “of such a nature that from the totality of [his] actions and in the light of the prevailing circumstances, it may be reasonably concluded that it [was] being engaged in ‘for the purpose of committing a crime as opportunity may be discovered.’ ” (See In re Huddleson, supra, 229 Cal.App.2d at p. 625.) Since the prevailing circumstances, as alleged, give rise to a claim of activity protected by the First Amendment, the extent of that right must be examined to determine the legality of petitioner’s alleged action, and to determine whether the otherwise constitutional ordinance, can constitutionally be applied to the circumstances revealed by the complaint.
“When the effective exercise of First Amendment rights relating to speech is impaired by governmental regulation, a court must weigh the extent of the impairment against both the importance of the governmental interest and the substantiality of the threat which the forbidden speech or related activity poses-to that interest. Both alternatives available to the achieve its regulatory objective in a manner less restrictive of those alternatives available to the exercise his right to effective communication in a manner less hostile to the governmental interest— must be appraised.” (Los Angeles Teachers Union v. Los Angeles City Board of Education, supra, 71 Cal.2d 551, 556. See also, Thornhill v. Alabama, supra, 310 U.S. 88, 95-96 [81 L.Ed. 1093,1098-1099].)
First Amendment Protection
“Freedom of speech assured by the First Amendment is one of the basic tenets of a free society. As aptly stated by Justice Holmes in 1919, ‘when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in the best test of truth is the p