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May 4, 1979


No. 734 October Term, 1975, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Luzerne County, at No. 9390 of 1973.

Before Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van Der Voort And Spaeth, JJ.

Author: Van Der Voort

[ 266 Pa. Super. Page 57]


By our Opinion in this case, filed at 239 Pa. Superior Ct. 76, 361 A.2d 790 (1976), we affirmed the Order of the Court of Common Pleas below denying relief sought pursuant to appellant's petition for writ of certiorari directed to that court from a magistrate's judgment. We did not reach appellant's allegation that § 1614 of the "Election Code", Act of 1937, June 3, P.L. 1333, Art XVI, added 1972, Dec.

[ 266 Pa. Super. Page 5828]

, P.L. 1658, No. 353, § 1 (25 P.S. § 3234), is unconstitutional. Appeal was allowed by the Supreme Court, which issued an Opinion broadening the scope of review of matters raised in an appeal from lower court's decision by certiorari and remanding the case to us for decision on the constitutional question. Commonwealth v. Wedzinski, 485 Pa. 247, 401 A.2d 1129, (filed October 5, 1978).*fn1

The challenged statute is as follows:

(a) No candidate for public office, or political committee or party acting on his behalf, shall place any advertisement referring to an opposing candidate for the same office which is to be broadcast or published during the forty-eight hours immediately prior to an election or published in a weekly newspaper or periodical during the eight days immediately prior to an election, with a television or radio broadcasting station, newspaper or periodical, unless he has first given a copy of the material to appear or be used in the advertisement and and reasonable notice to the opposing candidate and the County Board of Elections of the county where the advertisement is to be placed in sufficient time for a reply advertisement to be published or broadcast at the same approximate time or in the same issue of the publication or on the same radio or television broadcast the the original advertisement and prior to the election in question.

Section 3234 goes on to detail how notice shall be given and what penalties may be rendered for noncompliance. Appellant argues that the statute is overbroad and vague in that it provides a criminal penalty for references to an opposing candidate and is not limited to types of advertisements. Further, he calls the provision a prior restraint of free expression in contravention of the First and Fourteenth Amendments. An equal protection argument is also raised in that appellant posits that those candidates in urban areas with more ready and diverse forms of media coverage may

[ 266 Pa. Super. Page 59]

    give the required notice more expeditiously than those in rural areas, who may have available only periodic press coverage. We disagree and hold 25 P.S. § 3234 constitutional.

The avowed purpose of this statute is to prevent media presentation of one candidate's, or his party's, views of the opponent, by way of advertisement, within that crucial period immediately before an election, without notice so that the opponent does not have time to respond. In this era of increased spending on political advertisements, the obvious goal is to remove the disadvantageous and unfair results possible through a last minute, one-sided "smear" campaign. In what might be referred to as a battle of media advertisements, under this statute the opposing candidate must be forewarned and given the chance to answer the ads of the other side.

There is a small body of law, stemming in this Commonwealth at least from Commonwealth v. Evans, 156 Pa. Superior Ct. 321, 327, 40 A.2d 137 (1945), allocatur refused, holding that it is constitutional for the legislature, by its police power, to "promote clean campaigning and pure elections by regulations that have a real and substantial relation to the object to be attained, and which merely result in such a limited restraint upon the activities of candidates for public office, and of their advocates, as may be deemed necessary to prevent the electorate from being unduly influenced by prejudicial matter...." The "object to be attained" by the section of the "Election Code", supra, held constitutional in Evans, id., prohibited distribution of anonymous political matter. Other "goals to be attained", held constitutional, are (a) the prohibition against publication of matter reflecting upon the character or actions of an opposing candidate unless with the publication there be noted who is responsible for it, Commonwealth v. ...

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