TERESA A. DULANEY еt al., Petitioners, v. THE MUNICIPAL COURT FOR THE SAN FRANCISCO JUDICIAL DISTRICT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest.
S.F. No. 23006
In Bank
Mar. 28, 1974.
11 Cal. 3d 77
Charles C. Marson, Joseph Remcho, Peter E. Sheehan and Larry Sleizer for Petitioners.
Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier, Assistant Attorney General, Robert R. Granucci and Herbert F. Wilkinson, Deputy Attorneys General, for Respondent and for Real Party in Interest.
SULLIVAN, J.-In this proceeding for a writ of prohibition, petitioners, Teresa Dulaney and Joel Shapiro, challenge the constitutionality of section 690 оf the Municipal Code of the City and County of San Francisco (City) declaring it unlawful to affix any notice or poster to utility poles unless permission has been obtained from the person owning or controlling such poles and from the City‘s Department of Public Works, (Department).1 We have concluded that this section violates federal and state constitutional provisions guaranteeing the right of free speech since it operates as a prior restraint on the right of individuals to еxercise a form of protected expression but contains no standards whatsoever to guide the City‘s Department in its decision to grant or deny permission under the section.
The material facts are brief and are not in dispute. On November 16, 1972, petitioners were arrested for posting on a utility pole-either a telephone pole or a City-owned light pole2-a notice announcing an anti-war rally and march. It is not alleged that petitioners requested permission to post notices on utility poles from the owner of the poles and the Department. However, petitioners allege on information and belief, and it is not denied by the People, real party in interest herein, that the Department has, in the past, given permission to others to post notices or signs on utility poles under the authority of the ordinance in question.
Complaints were filed in respondent court charging petitioners sepa
In their return to the alternative writ, the People allege in effect that this is not an appropriate case for extraordinary relief and that the provision in question is not unconstitutional on its face but is a proper exercise of the City‘s police power. Otherwisе, they admit the allegations contained in the petition.3
Preliminarily, we must determine whether this is a proper case for extraordinary relief. Where a criminal statute or ordinance sought to be enforced is alleged to be unconstitutional on its face, a petition for a writ of prohibition is an appropriate method of seeking relief. (Dillon v. Municipal Court, supra, 4 Cal.3d 860, 866, fn. 6; Burton v. Municipal Court (1968) 68 Cal.2d 684, 687; Whitney v. Municipal Court (1962) 58 Cal.2d 907, 911; Hunter v. Justice‘s Court (1950) 36 Cal.2d 315, 323; Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 462-463; Mandel v. Municipal Court, supra, 276 Cal.App.2d 649, 655-656; Chavez v. Municipal Court (1967) 256 Cal.App.2d 149, 151-152; Moore v. Municipal Court (1959) 170 Cal.App.2d 548, 551-554; see Perrine v. Municipal Court (1971) 5 Cal.3d 656, 665, cert. den., 404 U.S. 1038; 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, §§ 40, 58; Cal. Civil Writs (Cont. Ed. Bar 1970) § 10.53, p. 241.)4
However, the People assert that a writ is inappropriate here because a foundational fact necessary for resolution of the constitutional issue is in dispute. (See
We reject the People‘s argument for two reasons. First, even assuming that utility poles need not be made available as a forum for exercising First Amendment rights, the ordinance on its face makes such poles accessible for posting notices where the consent of the owner and the Department is obtained. Contrary to the People‘s claim, the ordinance, therefore, has “opened the forum.” (For examples of “opening the forum,” see Marsh v. Alabama (1946) 326 U.S. 501 (privately owned sidewalks and streets); Wirta v. Alameda-Contra Costa Transit Dist. (1967) 68 Cal.2d 51, 54-55 (motor coaches); Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536, 545-546 (school building).) Whether or not the City has actually permitted others to post notices on utility poles is not, therefore, an issue “affecting the substantial rights of the parties.” (
We turn to the merits. Petitioners allege that the ordinance in question is an invalid prior restraint on freedom of speech because it establishes a licensing scheme that is “totally devoid of narrow, definite and objective standards.”5 (Dillon v. Municipal Court, supra, 4 Cal.3d at p. 866, fn. omitted.) The attack is directed only to the validity of the ordinance on its face-not as applied in this case-because it attempts to restrict or regulate the posting of notices or other printed material on utility poles.6
A threshold question which we must resolve is whether the ordinance in question attempts to regulate First Amendment expression. We note by means of a licensing scheme the ordinance regulates the posting of notices on utility poles but not their content. However, the First Amendment protects not only the content but also the dissemination of written material. (Martin v. Struthers (1943) 319 U.S. 141, 143; Lovell v. Griffin (1938) 303 U.S. 444, 452; Van Nuys Pub. Co. v. City of Thousand Oaks (1971) 5 Cal.3d 817, 821.) The posting of written material is not unlike other forms of protectеd expression, such as picketing (see Police Department of Chicago v. Mosley (1972) 408 U.S. 92 (decided on equal protection grounds); Cox v. Louisiana (1965) 379 U.S. 536, 542; Cox v. New Hampshire (1941) 312 U.S. 569, 575-576); and the distribution or circulation of printed matter (Talley v. California (1960) 362 U.S. 60; Schneider v. State (1939) 308 U.S. 147; Lovell v. Griffin, supra, 303 U.S. 444; Van Nuys Pub. Co. v. City of Thousand Oaks, supra, 5 Cal.3d 817.) Accordingly, we are of the view that
In Dillon v. Municipal Court, supra, 4 Cal.3d 860, involving a similar challenge to a city ordinance requiring permits for parades and demonstrations, we summarized the principles governing the constitutionality of restrictions on protected expression. We there observed: “In determining whether a statute regulating speech violates the First Amendment, we must weigh the state‘s intеrest in maintaining peace and order in the streets and other public places against the individual‘s right to freedom of speech and assembly. When this balance is struck, statutes requiring licenses for [the exercise of First Amendment rights] will not offend the Constitution if they regulate only the time, place, manner and duration [of such expression] and if they are fairly administered by officials within the range of narrowly limited discretion. On the other hand, any procedure which allows licensing officials wide or unbоunded discretion in granting or denying permits is constitutionally infirm because it permits them to base their determination on the content of the ideas sought to be expressed.” (4 Cal.3d at pp. 869-870.)
Moreover, the “quality of the governmental interest” in preserving peace and order must be “important or substantial” (United States v. O‘Brien (1968) 391 U.S. 367, 376-377) or “compelling” (Sherbert v. Verner (1963) 374 U.S. 398, 403; N.A.A.C.P. v. Button (1963) 371 U.S. 415, 438). However, “even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can bе more narrowly achieved.” (Shelton v. Tucker (1960) 364 U.S. 479, 488, fn. omitted.) Therefore, a statute or ordinance that operates as a prior restraint on the exercise of First Amendment freedoms must have “narrow, objective, and definite standards to guide the licensing authority.” (Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 151.) “Precision of regulation must be the touchstone . . . .” (N.A.A.C.P. v. Button, supra, 371 U.S. 415, 438; see also Interstate Circuit v. Dallas (1968) 390 U.S. 676, 682.)
The guidelines we enunciated in Dillon, fashioned from a long line of United States Supreme Court cases,7 reflect a careful and delicate process
of balancing the right of individuals to engage in protected expression against the interest of the community in preserving order. (Sеe Schneider v. State, supra, 308 U.S. 147, 161.) This process begins with the basic premise that generally speaking the government may not regulate the content or subject matter of First Amendment freedoms. (Police Department of Chicago v. Mosley, supra, 408 U.S. 92, 99; Cohen v. California (1971) 403 U.S. 15, 24.) As the high court has pointed out, to restrict the content of expression would be to erode the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270; see also Police Department of Chicago v. Mosley, supra, 408 U.S. 92.)
On the other hand, restrictions on the time, place and manner of expression are justified becаuse of the public interest in maintaining “peace and good order.” (Shuttlesworth v. Birmingham, supra, 394 U.S. 147, 152.) Indeed, one of the purposes of regulating the manner of exercising First Amendment freedoms is the very preservation of free speech itself. As stated in Cox v. Louisiana, supra, 379 U.S. 536, 554, “The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantеe of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.” Accordingly, the government‘s interest in order and the individual‘s interest in freedom of expression must be properly weighed so that the scope and effect of a statute or ordinance that restricts the time, place, or manner of expression are no greater than the legitimate interest the statute or ordinance seeks to advance. At the same time, we are mindful that the most significant factor in determining the validity of a governmental intrusion is a “zealous
Having these principles in mind, we proceed to examine the ordinance in the instant case.
The ordinance on its face fails to state the conditions that must be met before a permit will be granted or under what circumstances permission will be denied. It suffers from the same infirmities found in the ordinance in Dillon v. Municipal Court, supra, 4 Cal.3d 860, 863. The ordinance in Dillon declared it unlawful “to obstruct the free use of any street or sidewalk,” but provided an exception for parades and demonstrations. A permit for these activities “may” be given, the ordinance stated, “provided [certain] conditions are met.” Those conditions included, among other things, the filing of an application stating the name of the applicant, the date and time of the activity, and the route intended. Additionally, the ordinance provided that where a permit was not issued, “the applicant shall have the right to appeal to the City Council.” However, as in the instant case, the ordinance failed to state under what circumstances a permit would be denied or granted. Our criticism of the Dillon ordinance applies equally here: “The glaring and fatal defect in the section, however, is thаt it contains no standards whatsoever-let alone standards designed to be ‘narrow, objective and definite‘-to guide and govern the city officials in their decisions to grant or deny permits.” (4 Cal.3d at p. 870.) The absence of narrowly drawn standards leaves the licensing authorities free to control the content of speech. This they may not do.
The People attempt to justify the ordinance on several bases none of which we find tenable.
They first argue that it is in effect a trespass ordinance because it is intended to restrict the posting of notices on utility poles located on private property only. They refer to one section of the City‘s code which regulates the posting of notices on any property owned by the City (
Similarly, in the case at bench, we note that the ordinance under attack refers to a variety of poles falling within the general class of utility poles and obviously intended to be used for different purposes but that it in no way limits its application according to the location of the poles on public or private property. The fact that an exercise of speech occurs on private property does not end the inquiry; for example, the exercise of speech at a railway station, privately owned but open to the general public, has been given First Amendment protection. (In re Hoffman (1967) 67 Cal.2d 845, 850.) In any event, we decline to make the assumption suggested by the City since the ordinance on its face regulates the use of both public and private property.
We reject for the same reason the People‘s argument that the ordinance is designed to regulate purely commercial advertising not within the ambit of free speech and thus that it is not violative of constitutional guarantees. (See, e.g., Breard v. Alexandria (1951) 341 U.S. 622, 641-642 (door-to-door solicitation of business); Valentine v. Chrestensen (1942) 316 U.S. 52, 54 (distribution of commercial handbills in public streets); Wirta v. Alameda-Contra Costa Transit Dist., supra, 68 Cal.2d 51, 57.) The People point out that
But in any event, argue the People, the ordinance must be upheld since it promotes substantial governmental interests of the City while imposing only “incidental limitations on First Amendment freedoms.” (United States v. O‘Brien, supra, 391 U.S. 367, 376.) They rely on the guidelines in O‘Brien signifying that “a governmental regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression оf free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” (Id. at p. 377.) Under this aegis, the following governmental interests are proffered: The prevention of littering because signs remain and accumulate on poles (citing Schneider v. State, supra, 308 U.S. 147)8 and effect a “sensory pollution” now subject to restraint under forward-looking policies of environmental control; the protection of the “unwilling viewer” (citing Rowan v. Post Office Dept. (1970) 397 U.S. 728)9 partiсularly in “quiet, comfortable residential lanes“; and in general the promotion of “public health, safety, morals or general welfare.”
The People‘s argument is beside the point. The issue raised in these proceedings is not whether the ordinance bears a rational relationship to a legitimate governmental interest for that seems to have been taken for granted at the start. Indeed it is undisputed that the purpose of the ordinance is to promote the genеral welfare of the city whether that be defined in terms of the prevention of littering or of the unsightliness of utility poles. The issue here is whether after making the poles available for the posting of signs and thus for the exercise of First Amendment rights, the City may regulate their use as such by means of a standardless licensing scheme “which allows licensing officials wide or unbounded discretion in granting or denying permits” (Dillon v. Municipal Court, supra, 4 Cal.3d at p. 869), thereby effecting an invalid prior restraint on freedom of speech. We have already resolved this issue and concluded that because of such a standardless licensing system the ordinance must fall as an impermissible abridgement of free speech.
To recapitulate, we hold that
Let a peremptory writ of prohibition issue as prayed for.
Wright, C. J., Tobriner, J., and Mosk, J., concurred.
BURKE, J. - I dissent. As I pointed out in my dissenting opinion in a similar case, Van Nuys Pub. Co. v. City of Thousand Oaks, 5 Cal.3d 817, 829 [anti-littering оrdinance held invalid], the courts are obligated to sustain the constitutionality of municipal police power regulations to the extent consistent with constitutional requirements. In my view, rather than invalidate the instant ordinance in its entirety, we should construe it in such a manner as to avoid constitutional objections.
First of all, as I explained in Van Nuys, we properly may construe ordinances of this nature as applying only to “nonprotected, commercial material, thereby saving the constitutionality of thе ordinance in its most common application. [¶] The authorities uniformly recognize that commercial soliciting or advertising may be regulated by ordinances of the type involved herein. [Citations.]” (5 Cal.3d at pp. 830-831.)
Secondly, even as to so-called “protected” materials, we could employ the doctrine of severance to strike out only the offensive portion of
Thus, were we to invalidate only that portion of
McComb, J., and Clark, J., concurred.