No. 354 January Term, 1979, Appeal from the Order of the Superior Court of Pennsylvania, entered May 4, 1979, at No. 734 October Term, 1975
James F. Geddes, Jr., Wilkes Barre, for appellant.
Chester Muroski, Dist. Atty., Michael C. Kostelaba, Asst. Dist. Atty., Wilkes Barre, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a concurring opinion. Nix, J., filed a dissenting opinion.
The issue presented in this appeal is whether Section 1614 of the Pennsylvania Election Code is unconstitutional because it imposes criminal sanctions upon a candidate for public office who publishes a political advertisement referring to an opponent without first complying with prescribed notice requirements.*fn1 For the reasons set forth below, we
conclude that Section 1614 unreasonably restricts protected speech in contravention of the First and Fourteenth Amendments to the United States Constitution.*fn2
Appellant, Frank J. Wadzinski, a candidate for mayor of the City of Nanticoke in 1973, made a paid political radio broadcast on the day before the November 6, 1973 election. In the broadcast, appellant referred to his opponent, the incumbent mayor: (1) noting that a charge of perjury was pending against him, (2) criticizing his performance as mayor, and (3) attacking his indebtedness to "special interests."
Following the election, appellant was convicted of violating Section 1614 for failing to give the requisite advance notice of the contents of his broadcast.*fn3 Appellant thereafter
filed a petition for a writ of certiorari in the Court of Common Pleas of Luzerne County challenging, inter alia, the constitutionality of Section 1614 on First and Fourteenth Amendment grounds. That court dismissed the writ, holding that the constitutional question was not cognizable on appeal by writ of certiorari and, in the alternative, that appellant's constitutional claim was without merit. The Superior Court affirmed the dismissal on the procedural ground without reaching the merits of appellant's constitutional challenge. Commonwealth v. Wadzinski, 239 Pa. Super. 76, 361 A.2d 790 (1976). This Court granted allocatur and reversed and remanded for a decision on the merits. Commonwealth v. Wadzinski, 485 Pa. 247, 401 A.2d 1129 (1978).*fn4 On remand, the Superior Court upheld the constitutionality of Section 1614 and affirmed appellant's conviction. Commonwealth v. Wadzinski, 266 Pa. Super. 56, 403 A.2d 91 (1979).
Because this appeal presents an important and unsettled question of constitutional law, we again granted allocatur.*fn5
The Pennsylvania Election Code was enacted to regulate the electoral process so that it is both orderly and fair. The purpose of Section 1614 is to prevent misleading, false, or scandalous campaign charges, published immediately prior to an election, from going unrebutted and thus improperly
swaying the result of the election.*fn6 Accordingly, the statute places no direct restraint on the content of election-eve speech, but, instead, gives each candidate an opportunity to respond to widely publicized commentary published by his opponent just before the balloting begins.
Section 1614 thus requires a candidate who intends to publish a political advertisement referring to an opponent during the statutorily defined final days of a campaign to provide the opponent with "reasonable notice" of the contents of the advertisement. Reasonable notice is defined as notice that is sufficient to permit the opponent to publish a reply advertisement contemporaneously with or at the same approximate time as the original. As construed by the Superior Court in a previous constitutional challenge, the notice requirements of Section 1614 are imposed only on original, and not on reply, advertisements that make reference to an opponent. Commonwealth v. Suplee, 255 Pa. Super. 351, 387 A.2d 85 (1978).*fn7
In 1973, a violation of Section 1614 was a summary offense punishable by a fine or, in default thereof, imprisonment.*fn8 Proof of the offense is complete upon a showing that the defendant, without providing the requisite advance
notice, published in the designated media a political advertisement referring to an opponent. Thus, the truth or falsity of the statements made is wholly irrelevant to the applicability of criminal sanctions. In addition to the post-publication criminal penalties expressly provided for by Section 1614, further penalties may be imposed by provisions of the Pennsylvania Election Code. A willful violator of Section 1614 may forever be disqualified from holding public office, 25 P.S. § 3551, and may be disabled from voting for a period of four years from the date of conviction. 25 P.S. § 3553. See Pa.Const. art. 8, § 9.
In essence, appellant contends that these combined sanctions will deter political expression protected by the First and Fourteenth Amendments.*fn9 In response, the Commonwealth argues that Section 1614 is a content neutral law that operates to encourage, not to deter, the free flow of political information. Accordingly, the Commonwealth contends that the statute is likely to promote First Amendment freedoms. It is further argued that any incidental deterrent effect on protected speech occasioned by Section 1614 is ...