LOS ANGELES ALLIANCE FOR SURVIVAL et al., Plaintiffs and Respondents,
v.
CITY OF LOS ANGELES et al., Defendants and Appellants.
Supreme Court of California.
James K. Hahn, City Attorney, Frederick N. Merkin, Byron R. Boeckman and Debbie Lew, Assistant City Attorneys, and Candice I. Horikawa, Deputy City Attorney, for Defendants and Appellants.
*2 Louise H. Renne, City Attorney (San Francisco), Thomas J. Owen, Deputy City Attorney; and Mara E. Rosales for City and County of San Francisco, County of Sacramento, Port of Oakland and Port of San Diego as Amici Curiae on behalf of Defendants and Appellants.
Munger, Tolles & Olson, Marc A. Becker, Los Angeles, and Jeremy B. Rosen, for Center for the Community Interest, 77 California Cities and Central City Association of Los Angeles as Amici Curiae on behalf of Defendants and Appellants.
Kent S. Scheidegger, for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Defendants and Appellants.
ACLU Foundation of Southern California, Mark D. Rosenbaum, Peter J. Eliasberg, Los Angeles, Barbara J. Antonio; Karl Manheim; Law Office of Carol A. Sobel, Carol A. Sobel, Santa Monica; and William B. Rubenstein for Plaintiffs and Respondents.
Maria Foscarinis and Catherine Bendor, for the National Law Center on Homelessness & Poverty as Amicus Curiae on behalf of Plaintiffs and Respondents.
Law Offices of David M. Liberman, David M. Liberman, Los Angeles, and Deborah Zexter, for One World One Family Now, Inc., as Amicus Curiae on behalf of Plaintiffs and Respondents.
Levy, Ram & Olson, Karl Olson, San Francisco; and Alice Neff Lucan, Washington, District of Columbia, for California Newspapers Publishers Association as Amicus Curiae on behalf of Plaintiffs and Respondents.
McCutheon, Doyle, Brown & Enersen, Charles Crompton III, Frank Kennamer, Meghan Rhea, San Francisco; and Judith Appel, San Francisco, for the Coalition on Homelessness and the Street Spirit as Amici Curiae on behalf of Plaintiffs and Respondents.
GEORGE, C.J.
We granted the request of the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) for certification pursuant to California Rules of Court, rule 29.5 (rule 29.5), to address an important issue of state law: What is the proper standard under article I, section 2, subdivision (a) of the California Constitution (hereafter article I, section (2)(a), or liberty of speech clause) for analyzing the constitutionality of ordinances governing the public solicitation of funds, i.e., in-person requests for the immediate donation or payment of money, such as City of Los Angeles Ordinance No. 171664?
Plaintiffs contend that ordinances that single out such solicitation for distinct treatment should be viewed as "content-based" regulations (and hence constitutionally suspect), and may be upheld under the California liberty of speech clause only if the regulation satisfies the very stringent "strict scrutiny" standard. In contrast, defendants contend that such ordinances should not be considered content based under the California Constitution, and instead should be evaluated under the less-stringent "intermediate scrutiny" standard that California decisions traditionally have applied to "time, place, and manner" regulations of speech-related activity.
As we explain, this court's decisions dating back more than 80 years have recognized that requests for the immediate donation or payment of money while often encompassed within and protected by the liberty of speech clause may create distinct problems and risks that warrant different treatment and regulation. These precedents are inconsistent with plaintiffs' claim that statutes or ordinances are to be viewed as constitutionally suspect simply because they are directed at such solicitation alone and do not apply to other forms of speech-related activity. Although some recent decisions of the California and federal intermediate appellate courts have concluded that, under the California Constitution, ordinances directed at *3 solicitation should be viewed as content based and, for that reason, must satisfy the strict scrutiny test, those decisions rest on an erroneously literal interpretation of the phrase "content based" and fail to take into account long-established California decisions upholding ordinances or regulations that impose distinct rules or requirements upon activity involving the solicitation of funds.
Accordingly, we conclude that an ordinance (such as the Los Angeles ordinance at issue in the underlying action) that is directed at activity involving public solicitation for the immediate donation or payment of funds should not be considered content based or constitutionally suspect under the California Constitution, and should be evaluated under the intermediate scrutiny standard applicable to time, place, and manner regulations, rather than under the strict scrutiny standard.
I.
The pertinent facts are stated in the certification request of the Ninth Circuit (Los Angeles Alliance for Survival v. City of Los Angeles (9th Cir.1998)
"On July 2, 1997, the Los Angeles City Council enacted Ordinance No. 171664 entitled `Prohibition Against Certain Forms of Aggressive Solicitation,' codified as Los Angeles Municipal Code § 41.59. The ordinance ... went into effect August 15, 1997. The stated goal of the ordinance is `to protect citizens from the fear and intimidation accompanying certain kinds of solicitation that have been an unwelcome and overwhelming presence in the city.' The ordinance prohibits two kinds of solicitations `aggressive solicitations' in all locations, § 41.59(b), and all solicitations in specific locations, § 41.59(c)....
"[Plaintiffs] are groups and individuals that solicit immediate donations of money from members of the public on public fora throughout the City of Los Angeles. On September 11, 1997, [plaintiffs] brought an action for injunctive and declaratory relief to enjoin enforcement of the ordinance on the grounds that it violates the First and Fourteenth Amendments of the United States Constitution and the Liberty of Speech Clause of the California Constitution. [Plaintiffs] then requested a preliminary injunction which the district court granted on November 5, 1997.
"The district court rejected [defendants'] argument for Pullman abstention [ (Railroad Commission of Texas v. Pullman (1941)
II.
A.
The Ninth Circuit explained the need for certification in this matter as follows:
"The answer to the certified question will resolve a critical issue of whether the California Constitution's Liberty of Speech Clause grants greater protection to speech used in conjunction with solicitation than does the First Amendment of the United States Constitution. Under federal constitutional law, regulations of solicitation are reviewed as content-neutral restraints of speech. See, e.g., United States v. Kokinda,
".......................
"[Subsequent to Alternatives, supra,
".... We must determine whether [Alternatives, supra,
Finally, the Ninth Circuit stated that no decision of the California Supreme Court addresses whether "regulation of solicitation is content-neutral or content-based," and it asserted that the California Court of Appeal cases on that issue "present conflicting views." (Los Angeles Alliance I, supra,
B.
The Ninth Circuit's certification request formulated the question to be addressed as follows: "Is an ordinance that seeks to regulate the time, place and manner of solicitation of money or other thing of value or the sale of goods or services content based under the Liberty of Speech Clause of the California Constitution? Cal. Const, art. I, § 2." (Los Angeles Alliance I, supra,
The Ninth Circuit concluded: "Although we currently have under review the grant of a preliminary injunction, certification is proper because the challenge to the regulation is a facial one and so there are no additional facts relevant to the certified question to be litigated before the district court. The answer to the certified question may be determinative of the cause *5 pending before this panel. [¶] This court agrees to follow the answer provided by the California Supreme Court." (Los Angeles Alliance I, supra,
We granted the certification request, and, at the same time, modified the certified question to read as follows: "What is the proper standard under article I, section 2(a) of the California Constitution for analyzing the constitutionality of ordinances governing solicitations, such as Los Angeles Ordinance No. 171664?"[2]
C.
Until the adoption of rule 29.5, effective January 1, 1998, California was one of the few states in the nation that did not accept certified questions of state law. Because this is the first instance in which we have accepted a request for certification, we make the following brief observations. Many commentators have noted the benefits of certification. The procedure: (i) allows federal courts to avoid mischaracterizing state law (thereby avoiding a misstatement that might produce an injustice in the particular case and potentially mislead other federal and state courts until the state supreme court finally, in other litigation, corrects the error); (ii) strengthens the primacy of the state supreme court in interpreting state law by giving it the first opportunity to conclusively decide an issue; (iii) avoids conflicts between federal and state courts, and forestalls needless litigation; and (iv) protects the sovereignty of state courts.[3] (See, e.g., Braun, A Certification Rule for California (1996) 36 Santa Clara L.Rev. 935, 937-942 (Braun); Schneider, "But Answer Came There None": The Michigan Supreme Court and the Certified Question of State Law (1995) 41 Wayne L.Rev. 273, 299-301; see also Goldschmidt, Certification of Questions of Law: Federalism in Practice (1995 Amer. Judicature Soc'y.) pp. 3-10.)
The need for a certification procedure is well illustrated in this case by the above described history of Alternatives, supra,
The parties do not contest the constitutionality of the certification procedure embodied in rule 29.5. Sister courts in states with constitutions similar to the California Constitution uniformly have found that jurisdiction to entertain and decide certified questions, under a procedure adopted by rule or statute, is properly within the powers of a state supreme court. (E.g., In re Elliott (1968)
III.
To place the present controversy in perspective, we first highlight significant aspects of the Los Angeles ordinance at issue in the federal proceeding.
A.
The ordinance and its preamble are set out in full in the appendix to this opinion. The preamble articulates the city's purposes: "[I]t is the intent of the Council in enacting this Ordinance to improve the quality of life and economic vitality of the City, and to protect the safety of the general public against certain abusive conduct of persons engaged in solicitation, by imposing reasonable manner and place restrictions on solicitation while respecting the constitutional rights of free speech for all citizens...."
The preamble also sets out a number of findings: First, "an increase in aggressive solicitation throughout the city has become extremely disturbing and disruptive to residents and businesses, and has contributed *7 not only to the loss of access to and enjoyment of public places, but also to an enhanced sense of fear, intimidation and disorder...." Second, "the presence of individuals who solicit money from persons at or near banks or automated teller machines is especially threatening and dangerous. Motorists also find themselves confronted by persons who without permission wash their automobile windows at traffic intersections, despite explicit indications by drivers not to do so. Such activity often carries with it an implicit threat to both person and property. People driving or parking on city streets frequently find themselves faced with panhandlers seeking money by offering to perform `services' such as opening car doors or locating parking spaces...." Finally, "the Council ... finds as abusive the solicitation of people in places where they are a `captive audience' in which it is impossible or difficult for them to exercise their own right to decline to listen to or to avoid solicitation from others. Such places include buses, subways, and trains; parking lots and structures; and indoor and outdoor dining areas. Restricting solicitation in such places will provide a balance between the rights of solicitors and the rights of persons who wish to decline or avoid such solicitations, and will help avoid or diminish the threat of violence in such unwarranted and unavoidable confrontations...."
B.
The ordinance is directed at those who "`[s]olicit, ask or beg'" by "using the spoken, written, or printed word, or bodily gestures, signs or other means with the purpose of obtaining an immediate donation of money or other thing of value...." (L.A.Ord. No. 171664, § 41.59, subd. (a)(1), italics added.) The measure also covers solicitation for the sale of "goods or services" (ibid.) which would appear to include the sale of books, newspapers, tracts, artwork, etc., as well as the sale of "services," such as the washing of automobile windows. It applies in "`public place[s],'" defined as places (whether publicly or privately owned) where the public is afforded access, including streets, sidewalks, parking lots, plazas, transportation facilities, schools, places of amusement, parks, and any portion of any business establishment. (Id., subd. (a)(2).)
Consistent with the city's stated purpose and findings, the ordinance covers two categories of solicitation. First, with respect to all public places covered by the ordinance, the legislation bans solicitation that is conducted in an "aggressive manner," which is defined in detail as approaching, speaking to, or following a person in a manner intended to cause or reasonably likely to cause fear of bodily harm or intimidation; intentionally touching in the course of soliciting; intentionally blocking or interfering with passage; using violent or threatening gestures; persisting in closely following after being informed that the person does not want to donate; or using profane, offensive, or abusive language likely to provoke an immediate violent reaction. (L.A.Ord. No. 171664, § 41.59, subd. (b)(2)(A)-(F).)
Second, the ordinance bans all solicitation in certain defined places (with specified exemptions): within 15 feet of banks and automated teller machines; directed at occupied motor vehicles located in a public place; in parking lots or structures after dark; in public transportation vehicles and within 10 feet of such vehicle stops; and in any outdoor or indoor dining area of a restaurant. (L.A.Ord. No. 171664, § 41.59, subd. (c)(1)-(4).)
IV.
A.
An ordinance such as the one here at issue plainly implicates the liberty of speech clause of the California Constitution. (People v. Fogelson (1978)
As plaintiffs note, decisions applying the liberty of speech clause, like those applying the First Amendment, long have recognized that in order to qualify for intermediate scrutiny (i.e., time, place, and manner) review, a regulation must be "content neutral" (e.g., Savage, supra,
B.
In analyzing whether a regulation of solicitation should be viewed as content based or content neutral under the liberty of speech clause of the California Constitution, we begin with the unquestioned proposition that the California Constitution is an independent document and its constitutional protections are separate from and not dependent upon the federal Constitution, even when the language of the two charters is the same. (Cal. Const., art. I, § 24.) In this instance, the language of the relevant California constitutional provision differs from, and in some respects is broader than, the federal Constitution. Whereas the First Amendment to the United States Constitution, in relevant part, provides that government "shall make no law ... abridging the freedom of speech," article I, section 2(a), of the California Constitution reads: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right. A law may not restrain or abridge liberty of speech or press." This provision, often referred to as the "liberty of speech clause," was adopted without debate in the first California Constitution of 1849 (see Browne, Report of the Debates in The Convention of California on the Formation of the State Constitution (1850) pp. 41, 294, 458 (hereafter Browne, Report of the Debates (1850)), and has remained essentially unchanged since then.[9]
Most current state constitutions have similarly worded provisions,[10] and courts in these states frequently have observed that the language of their provisions is broader than that of the freedom of speech provision of the First Amendment. (E.g., State v. Linares (1995)
*10 This court, and the California Courts of Appeal, likewise have indicated that the California liberty of speech clause is broader and more protective than the free speech clause of the First Amendment. (Dailey v. Superior Court (1896)
Merely because our provision is worded more expansively and has been interpreted as more protective than the First Amendment, however, does not mean that it is broader than the First Amendment in all its applications.[12] In this regard, defendants acknowledge that the California Constitution is independent and that federal decisions interpreting the First Amendment are not controlling. They argue, however, that with respect to analysis of solicitation statutes, federal authorities are persuasive and are supportive of the treatment generally accorded by past California decisions.
C.
1.
We first describe the high court's test for determining content neutrality for purposes of the First Amendment. In deciding whether, under the First Amendment, a given regulation of speech or expressive activity is content based, and hence subject to strict scrutiny, or instead is content neutral, and hence subject to intermediate scrutiny (i.e., time, place, and manner analysis), the high court has stated that a restriction is content neutral if it is "justified without reference to the content of the regulated speech." (Clark v. Community for Creative Non-Violence (1984)
The high court's cases illuminate what it meant by this statement. Contrary to plaintiffs' view, these decisions do not require literal or absolute content neutrality, but instead require only that the regulation be "justified" by legitimate concerns that are unrelated to any "disagreement with the message" conveyed by the speech. (Ward, supra,
The three high court decisions that have addressed the question of content neutrality in the context of solicitation all have classified such laws as being content neutral, even though the laws at issue in those cases distinguished between speech that solicited the immediate donation of money and other protected speech, and thus were not totally unconcerned with the literal content of spoken or written words.
Heffron, supra,
The court next addressed the contentneutrality issue in Kokinda, supra,
Justice Kennedy, providing the fifth vote for the judgment in Kokinda, concurred separately to state his view that although he found the walkway to be a public forum under a "basic incompatibility" forum analysis, he nevertheless concluded that the challenged restriction was proper because it was content neutral and a permissible time, place, and manner regulation. (Kokinda, supra,
Three justices joined Justice Brennan in dissent, taking issue with (i) the plurality's public forum analysis and conclusion (Kokinda, supra,
The question whether a law regulating solicitation is content based or content neutral arose again in Lee, supra,
Justice Kennedy continued: "So viewed, I believe the ... rule survives our test for speech restrictions in the public forum. In-person solicitation of funds, when combined with immediate receipt of that money, creates a risk of fraud and duress that is well recognized, and that is different in kind from other forms of expression or conduct.... I would add that our precedents, as well as the actions of coordinate branches of Government, support this conclusion. We have in the past recognized that in-person solicitation has been associated with coercive or fraudulent conduct. Cantwell v. Connecticut,
The dissent in Lee, supra,
Viewed together, these high court opinions establish that a restriction on solicitation for immediate donation or exchange of funds may be found to be content neutral for purposes of the First Amendment even if the measure regulates such solicitation while leaving other types of speech untouched, so long as the regulation predominantly is addressed to the inherently intrusive and potentially coercive nature of that kind of speech, and not to the content of the speech. (See Doucette, supra,
All lower court decisions of which we are aware, applying the First Amendment in this context, similarly have held (in reliance upon the opinions in Heffron, Kokinda, and Lee) that laws targeting solicitations but not other speech are nevertheless content neutral. (Xiloj-Itzep, supra,
2.
Alternatives, supra,
It may be questioned whether Alternatives, supra,
In any event, as we shall explain, we believe that the court's conclusion in Alternatives with respect to the liberty of speech clause of the California Constitution was erroneous for two fundamental reasons.
a.
First, Alternatives, supra,
In Matter of Application of Dart (1916)
We quoted with approval this passage of Dart, in Gospel Army v. City of Los Angeles (1945)
More recently, and to the same effect, in Fogelson, supra,
As the foregoing decisions demonstrate, this court has not suggested that legislative measures directed at public solicitation of funds are constitutionally suspect merely because they do not impose the same requirements on other forms of free expression, nor have we suggested that an ordinance directed at public solicitation of funds is a content-based regulation that must be specially justified under the strict scrutiny standard.
b.
Second, the court's literal approach in Alternatives to the content-based doctrine also ignores the theoretical underpinnings of that doctrine and the reasons content-based distinctions are constitutionally suspect. The cases of Danskin v. San Diego Unified Sch. Dist. (1946)
In Danskin, supra,
*18 The decision in Alternatives failed to recognize that such concerns about government censorship are not raised by a regulation that, responding to the problems and hazards created by the request for an immediate contribution or transfer of money, applies to all solicitation of funds, regardless of the subject matter or viewpoint for which funds are solicited.
Alternatives's literal approach to determining content neutrality is suspect in another sense. It has been observed that "the goals of content neutrality and narrow tailoring are inherently in tension." (Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning (1996) 105 Yale.L.J. 1165, 1232, fn. 370; see also id., at p. 1236.) Plaintiffs' proposed approach highlights and exacerbates that tension.
As noted above, the regulation of solicitation long has been recognized as being within the government's police power (Dart, supra,
D.
We conclude that in light of the history of solicitation regulations in California and the theoretical foundations of the content based doctrine, regulations such as the Los Angeles ordinance here at issue, that single out the public solicitation of funds for distinct treatment, should not be viewed as content based or constitutionally suspect for purposes of analysis under article I, section 2(a), of the California Constitution. We have not been cited, nor have we found, anything in the history of the article (e.g., Browne, supra, Report of the Debates (1850); Willis & Stockton, supra, Debates and Proceedings (1878-1879); Cal. Const. Revision Com., Proposed Revision, supra), or in the cases construing it, that is inconsistent with the foregoing conclusion.
V.
In response to the Ninth Circuit's certification request, we conclude as follows: Regulations such as the Los Angeles ordinance here at issue, banning all aggressive solicitation for the immediate exchange of funds, and banning all solicitation for immediate *19 donations in certain captive audience areas, should be considered content neutral for purposes of article I, section 2(a).
BAXTER, J., WERDEGAR, J., CHIN, J., and BROWN, J., concur.
Concurring Opinion by WERDEGAR, J.
I have signed the majority opinion. I write separately only to make clear that the opinion does not decide any question about the constitutionality of rule 29.5 of the California Rules of Court. The rule reflects the assumption that the California Constitution gives this court jurisdiction to answer certified questions. As the majority notes, some other states' supreme courts have found themselves to possess similar powers under their own state constitutions. (Maj. opn., ante,
Dissenting Opinion by MOSK, J.
I dissent.
The provisions at issue, antisolicitation regulations under City of Los Angeles Ordinance No. 171664 (the ordinance), target a broad range of conduct and speech found by the Council of the City of Los Angeles to be "extremely disturbing and disruptive to residents and businesses." (L.A. Ord. No. 171664 (preamble).) Although the ordinance is entitled a "Prohibition Against Certain Forms of Aggressive Solicitation," only a portion of its provisions actually involves "aggressive" conduct; the other provisions restrict or ban a wide variety of expressive activities, no matter how peaceful or passive, including charitable or political solicitation and the sale of newspapers, books, pamphlets, and other items in specified locations (including the area around public transportation stops, public parking lots, and outdoor areas where food is served) on public streets, plazas, and in other public fora.
The majority conclude that the ordinance passes constitutional muster under California's liberty of speech clause (Cal. Const., art. I, § 2) because it is justified by a content-neutral purpose, i.e. that solicitation, as a category of expression, is inherently more hazardous than other types of speech. According to the majority, the ordinance is not "constitutionally suspect" because it merely imposes time, place, and manner restrictions on protected expression without regard to content. (Maj. opn., ante, 93 Cal.Rptr.2d at pp. 2, 18, 993 P.2d at pp. 335, 349.)
I disagree. The ordinance does not restrict only the time, place, and manner of expression. It restricts solicitation precisely because of its content: the identical time, place, and manner of expression are or are not proscribed depending only on what words (or gestures) are used. Plaintiffs offer the following example. A person holding a sign that states "Fight Hunger In Our Community" may freely stand on a public street near a taxi stop in Los Angeles, even if people ask him to leave. Another person holding a sign stating "Fight Hunger In Our Community; Please Donate To Our Church Soup Kitchen" standing in exactly the same place is potentially acting illegally under the ordinance. Both speakers are expressing themselves at the same time and place and in the same manner; the only difference is the content of their speech. The ordinance may be viewpoint neutral because it treats all solicitation the same way; but it is not content neutral because it discriminates between requests for money and offers of goods or services and other speech. It must therefore be reviewed under a strict scrutiny standard. (U.C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory (1984)
In my view, the City of Los Angeles cannot justify a categorical prohibition *20 against all solicitation broadly defined to include speech, the printed word, bodily gestures, signs or other means of requesting an immediate donation or selling goods or services on the basis that it is inherently disruptive. "Broad prophylactic rules in the area of free expression are suspect." (N.A.A.C.P. v. Button (1963)
Thus, Heffron v. Int'l Soc. for Krishna Consc. (1981)
But, in any event, we are interpreting a constitutional provision "`more definitive and inclusive than the First Amendment'": the liberty of speech clause of article I, section 2 of the California Constitution. (Spiritual Psychic Science Church v. City of Azusa (1985)
The majority point to "this court's decisions dating back more than 80 years" for the proposition that requests for the immediate donation of money create distinct problems and risks warranting regulation. (Maj. opn., ante,
Certainly, the City of Los Angeles may penalize disorderly, harassing, and intimidating conduct in a public space, such as obstructing the area in front of an automated teller machine or threatening personal harm. As I stated in my concurring opinion in People v. Fogelson (1978)
But I am unpersuaded that all the many kinds of peaceful expression restricted or even banned altogether under the ordinance can be regulated based on the generalization that they inherently cause "problems and hazards." (Maj. opn., ante,
As emphasized in Fogelson, "it is important to recognize that individuals in public places cannot expect the same degree of protection from contact with others as they are entitled to in their own homes. `"The man who goes ... to a public place must expect to meet and mingle with all classes of people. He cannot ask, to suit his caprice or prejudice or social views, that this or that man shall be excluded because he does not wish to associate with them."'" (People v. Fogelson, supra,
For these reasons, I dissent.
Dissenting Opinion by KENNARD, J.
Free speech is often annoying. Just ask any parent.
But in the public forum at least, the people of our state and nation have chosen to accord free speech preeminent constitutional protection. This choice is founded on the belief that on the whole it is more dangerous to empower the government to select what we shall hear than it is to put up with the diversity and cacophony of uncensored and sometimes offensive speech. "`[U]nder our system of government we may not prohibit the dissemination of views simply because they are controversial, distasteful, or disturbing. To sanction such a prohibition "would be a complete repudiation of the philosophy of the Bill of Rights." [Citation.]' [Citation.]" (Aguilar v. Avis Rent A Car System, Inc. (1999)
That principle is at issue here. To assist it in deciding a case pending before it, the United States Court of Appeals for the Ninth Circuit has certified this question to us: Under the liberty of speech clause of the California Constitution, does a city ordinance banning various forms of aggressive solicitation and banning solicitation, but not other speech, in certain locations selectively suppress speech on the basis of content?
The ordinance's aggressive solicitation ban, which addresses noncommunicative conduct and "fighting words" and other forms of speech unprotected by the California Constitution, prohibits aggressive conduct and offensive speech only when they occur in connection with solicitation and not when they occur in connection with speech conveying other messages. The aggressive solicitation ban thus is content based because it uses the content of the speaker's message to determine whether the speaker is subject to punishment.
The ordinance's location ban too suppresses speech on the basis of content. At the locations to which it applies, it prohibits speech whose message is a solicitationincluding begging, charitable donation solicitation, political donation solicitation, and offers to sell goods or servicesbut not speech on other topics.
The majority nevertheless concludes that the ordinance is content neutral, not content based. This decision is yet another example of the insensitivity to free speech that appears to be developing in this court. Barely six months ago, this court, over my dissent, approved an injunction censoring disfavored speech in the workplace. (Aguilar v. Avis Rent A Car System, Inc., supra,
I
Regarding the First Amendment to the federal Constitution, the United States Supreme Court has said: "It is axiomatic that the government may not regulate *23 speech based on its substantive content or the message it conveys. [Citation.] Discrimination against speech because of its message is presumed to be unconstitutional." (Rosenberger v. Rector and Visitors of Univ. of Va. (1995)
The same is true under the liberty of speech clause of the California Constitution. Its promise that "[e]very person may freely speak, write and publish his or her sentiments on all subjects" (Cal. Const., art. I, § 2, subd. (a)) is, if anything, an even stronger guarantee against the government's selective suppression of disagreeable messages, as the majority here acknowledges.[1] (See, e.g., Griset v. Fair Political Practices Com. (1994)
Because protection against government censorship of messages is fundamental to freedom of speech, a critical inquiry under both the federal and California Constitutions in determining the legitimacy of a governmental restriction on speech is whether the restriction is based on the content of the speaker's messagein other words, whether the restriction is content neutral or content based. Content-neutral restrictions on the time, place, and manner of speech are permissible under the First Amendment to the federal Constitution and under California's liberty of speech clause so long as they advance a significant governmental interest, are narrowly tailored, and leave open adequate alternative channels of communication. (Ward v. Rock Against Racism (1989)
Under the First Amendment, speech restrictions that are content based must meet a higher level of justification than restrictions that are content neutral. "Content-based regulations are presumptively invalid." (R.A.V. v. St. Paul (1992)
It does not appear this court has decided whether under California's liberty of speech clause the strict scrutiny test or some other standard applies to determine the validity of a content-based speech regulation.[2]
*24 II
At issue here is an ordinance of the City of Los Angeles prohibiting aggressive solicitation anywhere and banning solicitation at certain designated locations. As I noted earlier, a threshold inquiry in deciding the constitutionality of the ordinance under California's liberty of speech clause is whether its restrictions are content neutral or content based, for the outcome of that inquiry determines whether the ordinance qualifies for analysis as a "time, place, and manner" restriction. The Ninth Circuit phrased its certified question to us this way: "Is an ordinance that seeks to regulate the time, place and manner of solicitation of money or other thing of value or the sale of goods or services content based under the Liberty of Speech Clause of the California Constitution? Cal. Const. art. I, § 2." Over my objection, this court reformulated the question this way: "What is the proper standard under article I, section 2(a) of the California Constitution for analyzing the constitutionality of ordinances governing solicitations, such as Los Angeles Ordinance No. 171664?" (Maj. opn., ante, 93 Cal.Rptr.2d at pp. 4-5, 993 P.2d at pp. 337-338.)
The majority never answers its reformulated question. Although the majority sets forth the standard under the federal Constitution for analyzing the constitutionality of speech restrictions, it never articulates the corresponding standard under the California Constitution. Instead, the majority addresses the Ninth Circuit's original question and concludes simply that "regulations such as the Los Angeles ordinance here at issue, that single out the public solicitation of funds for distinct treatment, should not be viewed as content based or constitutionally suspect" under the liberty of speech clause. (Maj. opn., ante, 93 Cal. Rptr.2d at pp. 5, fn. 2, 18, 993 P.2d at pp. 337, fn. 2, 349.) Like the majority, I address the Ninth Circuit's original question to us: whether the ordinance here is content neutral. Unlike the majority, I also explain what, in my view, the proper standard is for deciding under the California Constitution whether a speech restriction is content neutral or content based.
The United States Supreme Court has faced a similar task in deciding whether speech restrictions are content neutral under the First Amendment to the federal Constitution. An examination of its relevant cases reveals the following principles. "As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." (Turner Broadcasting System, Inc. v. FCC, supra,
A speech regulation may be content based even if the government's purpose in adopting the regulation is not to censor speech on the basis of content: "[W]hile a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary to such a showing in all cases." (Turner Broadcasting System, Inc. v. FCC, supra,
The high court's decision in Cincinnati v. Discovery Network, Inc. (1993)
"By contrast, laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral." (Turner Broadcasting System, Inc. v. FCC, supra,
But just as a neutral motive will not save a speech restriction that on its face discriminates on the basis of content, if the government's motive is to censor then even a speech restriction that is content neutral on its face will be analyzed as a content-based restriction. In the words of the high court: "Our cases have recognized that even a regulation neutral on its face may be content based if its manifest purpose is to regulate speech because of the message it conveys." (Turner Broadcasting System, Inc. v. FCC, supra,
These decisions by the United States Supreme Court may be summarized as follows: A speech restriction is content based if by its terms it uses the message conveyed by a particular speech act as the criterion for determining whether the restriction applies to that speech act. A speech restriction is content neutral if the criterion triggering its application is not the message conveyed by the speech act but some other characteristic, such as the medium of communication. Finally, a content-neutral purpose will not save a speech restriction that on its face restricts speech on the basis of its message from being judged as a content-based restriction; nor will a restriction neutral on its face be judged as a content-neutral restriction if the government's actual purpose is to target certain messages and not others.
Although, as I have noted, California's liberty of speech clause is a broader protection of speech than is the First Amendment, there does not appear any compelling reason to adopt a different standard of content neutrality for the liberty of speech clause. Content neutrality is only one aspect of the "time, place, and manner" test of permissible speech regulation this court has borrowed from federal constitutional law. It would be anomalous for us to alter, without good reason, the definition of *26 content neutrality while retaining the rest of the test unchanged.
Furthermore, as the high court has noted, there are valid reasons for rejecting a more stringent test that would find any regulation to be content based if it had a more severe impact on speech on one topic than on speech on other topics. Time, place, and manner restrictions are permitted to the extent they are instances of the government attacking some nonspeech harm by a method whose application does not turn on the content of the restricted speech. The test of content neutrality set forth above restricts the government from attacking a nonspeech harm by using disfavored speech as a convenient proxy for the harm (e.g., by banning only Ku Klux Klan marches because they are thought more likely to produce violence than St. Patrick's Day parades). A stricter test, under which a facially neutral speech restriction would be judged as content based if in practice the restriction (like the park's restriction on amplified sounds at issue in Ward v. Rock Against Racism, supra,
III
Turning to the city ordinance at issue here, I join the majority in the recognition that solicitation is protected speech under article I, section 2 of the California Constitution. (Maj. opn., ante, 93 Cal.Rptr.2d at pp. 7-8, 993 P.2d at pp. 339-341.) Solicitation is a communicative activity, for a person soliciting seeks to communicate a request for an immediate donation of money or an offer to sell goods or services. Nor is solicitation one of those few narrow categories of communicative activity, like fighting words or obscenity, so inherently harmful that it is unprotected speech and may be banned completely. (See generally R.A.V. v. St. Paul, supra,
*27 The ordinance here defines the terms "solicit, ask or beg" as including "using the spoken, written, or printed word, or bodily gestures, signs or other means with the purpose of obtaining an immediate donation of money or other thing of value or soliciting the sale of goods or services." (L.A.Ord. No. 171664, § 41.59, subd. (a)(1).) I shall hereafter refer to these activities as "solicitation."
The ordinance reaches not only begging but also charitable solicitation and the sale of publications. It bans solicitation conducted in an "aggressive manner." (L.A.Ord. No. 171664, § 41.59, subd. (a)(1).) Aggressive solicitation includes approaching, speaking to, or following a person in a manner intended to cause or reasonably likely to cause intimidation or fear of bodily harm, property damage, or property loss; intentionally touching a person or vehicle in the course of soliciting; intentionally blocking or interfering with the passage of a pedestrian or vehicle; using violent or threatening gestures before, during or after solicitation; persisting in closely following or approaching a person after being informed that the person does not want to be solicited or to donate; or before, during, or after solicitation using profane, offensive, or abusive language likely to provoke an immediate violent reaction. (L.A.Ord. No. 171664, § 41.59, subd. (b)(2)(A)-(F).)
The ordinance also bans all solicitation in these locations: within 15 feet of an automated teller machine (ATM) or the entrance to a bank or other financial institution; when directed at an occupied motor vehicle located in a public place; in a parking lot or structure after dark; in a public transportation vehicle or within 10 feet of any designated transportation vehicle stop; and in any outdoor or indoor dining area of a restaurant.[3] (L.A.Ord. No. 171664, § 41.59, subd. (c)(l)-(4).)
The City of Los Angeles seeks to justify the ordinance as a valid content-neutral restriction on the time, place, and manner of speech. As I noted earlier, such a restriction is permissible so long as it is content neutral, advances a significant governmental interest, is narrowly tailored, and leaves open adequate alternative channels of communication. The question that the Ninth Circuit has certified to us concerns the first of these requirements: whether the ordinance is content neutral.
I first address the ordinance's aggressive solicitation ban. It prohibits noncommunicative harmful conduct (touching, blocking passage, using threatening gestures, closely following a person); it also prohibits two categories of harmful speech (speech intended or reasonably likely to cause fear of harm or intimidation and "fighting words" likely to provoke immediate violence) unprotected under the state or federal Constitutions. (See R.A.V. v. St. Paul, supra,
Turning to the ordinance's location ban, it is content based because at specified locations it prohibits only speech asking for a donation or offering something for sale, and not speech on other subjects. Thus, a speaker can approach someone using an ATM and ask for the time, but cannot ask for a quarter. The speaker can ask the ATM user to sign a petition, but not to buy a booklet supporting the position taken by the petition.
The harm the location ban attacks is the distraction, discomfort, or uneasiness the solicitor's message causes in those who hear it, not some other harm unrelated to the fact that the content of the message is a solicitation. "Listeners' reaction to speech is not a content-neutral basis for regulation." (Forsyth County v. Nationalist Movement (1992)
Stated differently, the ordinance's location ban is content based because the question of whether a statement made in such a location falls under the ordinance's prohibition depends entirely on the meaning of the statement. Only by examining the meaning of what has been said can it be decided whether the speaker has violated the ordinance.
My conclusion that the location ban is content based finds support in the United States Supreme Court's decision in Burson v. Freeman, supra,
Similarly, the high court has held that an ordinance prohibiting newsracks with commercial solicitation handbills while permitting newsracks with newspapers in the same location is a content-based location ban. (Cincinnati v. Discovery Network, Inc., supra,
Both the Massachusetts Supreme Judicial Court and the United States Court of Appeals for the Second Circuit have concluded that statutes prohibiting begging but not speech on other subjects are content-based restrictions. (Benefit v. City of Cambridge, supra,
The conclusion that the ordinance here is content based does not, of course, mean that the ordinance is necessarily unconstitutional under the California Constitution. Determining content neutrality is the beginning, not the end, of analyzing whether a speech restriction is constitutional. For a content-based restriction, the next step is to decide what standard such a restriction must meet to be valid under California's liberty of speech clause. If the proper test is strict scrutiny, it may well be that some or all of the ordinance's restrictions can be justified as serving a compelling governmental interest in preventing the harms caused by solicitation in the manner or at the locations specified in the ordinance and as being no broader than necessary to combat those harms. That issue, however, is beyond the scope of the question that the Ninth Circuit has certified to us. Moreover, even if the ordinance is unconstitutional, the City of Los Angeles would not be powerless to address the noncommunicative harms of solicitations. It need only do so by measures that do not single out solicitations for disfavored treatment while leaving other messages untouched (such as a prohibition of all speech at certain locations), or that make no reference to speech at all in their application (such as a prohibition on using profane, offensive, or abusive language likely to provoke an immediate violent reaction whether or not spoken in connection with a solicitation).
IV
In finding the ordinance as a whole to be content neutral, the majority relies on three United States Supreme Court cases decided under the First Amendment: Heffron v. Int'l Soc. for Krishna Consc., Inc. (1981)
In Heffron, the high court held that a regulation prohibiting at a state fair the "`[s]ale or distribution of any merchandise, including printed or written material'" except at fixed locations approved by the fair *30 was valid under the First Amendment. (Heffron, supra,
In Lee, the high court's decision upholding an airport solicitation ban did not address whether such location solicitation bans are content neutral. Instead, it relied on the conclusion that an airport is not a "traditional public forum." (Lee, supra,
In Kokinda, a plurality of the high court likewise concluded that a post office sidewalk is not a public forum. Accordingly, the plurality's conclusory statement that a ban on solicitations at that location was not content based was dictum, for that question has nothing to do with the validity of a speech restriction in a nonpublic forum. (See Kokinda, supra,
I also note that when this court in deciding questions under the California Constitution adopts as an analytic tool a test the United States Supreme Court has developed to resolve similar issues under the federal Constitution, this court does not thereby passively and automatically subscribe to all applications of that test by the high court. We remain free to disagree with the high court's application of the test in various circumstances, even if we agree with its formulation of the test. In matters of state constitutional law, we need not "play Ginger Rogers to the high court's Fred Astairealways following, never leading." (People v. Cahill (1993)
In addition to the three United States Supreme Court cases just discussed, the majority relies on decisions of this court stating in general terms that solicitations are not immune from all regulation: Rescue Army v. Municipal Court (1946)
No one suggests that solicitation must be utterly free of regulation. The issue here, not addressed in these prior decisions of our court, is the much narrower one of whether a government acts on the basis of content when it imposes a location ban on solicitations to which no other messages are subject, or when it punishes otherwise unprotected speech and conduct only in connection with solicitation.
Here, there is no logic to the majority's leap from the premise that solicitation is not constitutionally immune from regulation to the conclusion that therefore selectively restricting or completely prohibiting solicitation, while permitting all other speech to occur, is never content based. The majority fails to make any careful constitutional analysis of the quite distinct restrictions of the solicitation ordinance at issue here. Instead, it merges them together by referring to the ordinance as one that "single[s] out the public solicitation of funds for distinct treatment" (maj. opn., ante,
The majority also suggests that because the ordinance is not viewpoint based, it is not content based. It asserts that "concerns about government censorship are not raised by a regulation that, responding to the problems and hazards created by the request for an immediate contribution or transfer of money, applies to all solicitation of funds, regardless of the subject matter or viewpoint for which funds are solicited." (Maj. opn, ante,
In the end, the majority is left with nothing more than an unadorned and circular conclusion: although this court has never considered the question, the ordinance's restrictions on solicitation must be content neutral under the liberty of speech clause because we have never said such restrictions are content based.
CONCLUSION
For many people, being asked on the streets for donations or to buy goods or services is annoying, offensive, disturbing, or depressing. Those adjectives also describe much other speech to which we are unwillingly exposed. "`"If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."'" (Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., supra,
Appendix
ORDINANCE NO. 171664
An ordinance adding section 41.59 to Article I of Chapter IV of the Los Angeles Municipal Code to prohibit aggressive soliciting.
WHEREAS, it is the intent of the Council in enacting this Ordinance to improve the quality of life and economic vitality of the City, and to protect the safety of the general public against certain abusive conduct of persons engaged in solicitation, by imposing reasonable manner and place restrictions on solicitation while respecting the constitutional rights of free speech for all citizens, and
WHEREAS, the Council finds that an increase in aggressive solicitation throughout the city has become extremely disturbing and disruptive to residents and businesses, and has contributed not only to the loss of access to and enjoyment of public places, but also to an enhanced sense of fear, intimidation and disorder, and
WHEREAS, aggressive panhandling usually includes approaching or following pedestrians, the use of abusive language, unwanted physical contact, or the intentional blocking of pedestrian and vehicular traffic. The Council further finds that the presence of individuals who solicit money from persons at or near banks or automated teller machines is especially threatening and dangerous. Motorists also find themselves confronted by persons who without permission wash their automobile windows at traffic intersections, despite explicit indications by drivers not to do so. Such activity often carries with it an implicit threat to both person and property. People driving or parking on city streets frequently find themselves faced with panhandlers seeking money by offering to perform "services" such as opening car doors or locating parking spaces, and
WHEREAS, the Council further finds as abusive the solicitation of people in places where they are a "captive audience" in which it is impossible or difficult for them to exercise their own right to decline to listen to or to avoid solicitation from others. Such places include buses, subways, and trains; parking lots and structures; and indoor and outdoor dining areas. Restricting solicitation in such places will provide a balance between the rights of solicitors and the rights of persons who wish to decline or avoid such solicitations, and will help avoid or diminish the threat of violence in such unwarranted and unavoidable confrontations, and
WHEREAS, this law is timely and appropriate because current laws and city regulations are insufficient to address the aforementioned problems. The restrictions contained herein are neither overbroad nor vague and are narrowly tailored to serve a substantial governmental interest. Furthermore, in enacting this legislation, the Council recognizes the availability of community service and othersentencing alternatives, which may be appropriate remedies for violations of this law. The goal of this law is to protect citizens from the fear and intimidation accompanying certain kinds of solicitation that have become an unwelcome and overwhelming presence in the city.
NOW THEREFORE, THE PEOPLE OF THE CITY OF LOS ANGELES DO ORDAIN AS FOLLOWS:
Section 1. Chapter IV of the Los Angeles Municipal Code is hereby amended by *33 adding a new Section 41.59 thereto, to read as follows:
SEC. 41.59. PROHIBITION AGAINST CERTAIN FORMS OF AGGRESSIVE SOLICITATION.
(a) Definitions. For purposes of this section:
(1) "Solicit, ask or beg" shall include using the spoken, written, or printed word, or bodily gestures, signs or other means with the purpose of obtaining an immediate donation of money or other thing of value or soliciting the sale of goods or services.
(2) "Public place" shall mean a place to which the public or a substantial group of persons has access, and includes, but is not limited to, any street, highway, sidewalk, parking lot, plaza, transportation facility, school, place of amusement, park, playground, and any doorway, entrance, hallway, lobby and other portion of any business establishment, an apartment house or hotel not constituting a room or apartment designed for actual residence.
(b) Aggressive Solicitation prohibited.
(1) No person shall solicit, ask or beg in an aggressive manner in any public place.
(2) "Aggressive manner" shall mean any of the following:
(A) Approaching or speaking to a person, or following a person before, during or after soliciting, asking or begging, if that conduct is intended or is likely to cause a reasonable person to (i) fear bodily harm to oneself or to another, damage to or loss of property, or (ii) otherwise be intimidated into giving money or other thing of value;
(B) Intentionally touching or causing physical contact with another person or an occupied vehicle without that person's consent in the course of soliciting, asking or begging;
(C) Intentionally blocking or interfering with the safe or free passage of a pedestrian or vehicle by any means, including unreasonably causing a pedestrian or vehicle operator to take evasive action to avoid physical contact;
(D) Using violent or threatening gestures toward a person solicited either before, during, or after soliciting, asking or begging;
(E) Persisting in closely following or approaching a person, after the person solicited has been solicited and informed the solicitor by words or conduct that such person does not want to be solicited or does not want to give money or any other thing of value to the solicitor; or
(F) Using profane, offensive or abusive language which is inherently likely to provoke an immediate violent reaction, either before, during, or after solicitation.
(c) All solicitation prohibited at specified locations.
(1) Banks and ATMs. No person shall solicit, ask or beg within 15 feet of any entrance or exit of any bank, savings and loan association, credit union, or check cashing business during its business hours or within 15 feet of any automated teller machine during the time it is available for customers' use. Provided, however, that when an automated teller machine is located within an automated teller machine facility, such distance shall be measured from the entrance or exit of the automated teller machine facility. Provided further that no person shall solicit, ask or beg within an automated teller machine facility where a reasonable person would or should know that he or she does not have the permission to do so from the owner or other person lawfully in possession of such facility. Nothing in this paragraph shall be construed to prohibit the lawful vending of goods and services within such areas.
(A) Definitions. For purposes of this section:
(i) "Bank" means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution *34 organized or operated under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.
(ii) "Savings and loan association" means any federal savings and loan association and any "insured institution" as defined in Section 401 of the National Housing Act, as amended, and any federal credit union as defined in Section 2 of the Federal Credit Union Act.
(hi) "Credit union" means any federal credit union and any state-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union Administration.
(iv) "Check cashing business" means any person duly licensed as a check seller, bill payer, or prorater pursuant to Division 3 of the California Financial Code, commencing with section 12000.
(v) "Automated teller machine" shall mean any electronic information processing device which accepts or dispenses cash in connection with a credit, deposit, or convenience account.
(vi) "Automated teller machine facility" shall mean the area comprised of one or more automated teller machines, and any adjacent space which is made available to banking customers after regular banking hours.
(B) Exemptions. The provisions of subdivision (c)(1) shall not apply to any unenclosed automated teller machine located within any building, structure or space whose primary purpose or function is unrelated to banking activities, including but not limited to supermarkets, airports and school buildings, provided that such automated teller machine shall be available for use only during the regular hours of operation of the building, structure or space in which such machine is located.
(2) Motor vehicles and parking lots.
(A) Motor vehicles. No person shall approach an operator or occupant of a motor vehicle for the purpose of soliciting, asking or begging while such vehicle is located in any public place.
(B) Parking lots. No person shall solicit, ask or beg in any public Parking lot or structure any time after dark. "After dark" means any time from one-half hour after sunset to one-half hour before sunrise.
(C) Exemptions. Subdivision (c)(2) shall not apply to any of the following:
(i) to solicitations related to business which is being conducted on the subject premises by the owner or lawful tenants;
(ii) to solicitations related to the lawful towing of a vehicle; or
(iii) to solicitations related to emergency repairs requested by the operator or other occupant of a vehicle.
(3) Public transportation vehicles and stops.
(A) "Public transportation vehicle" shall mean any vehicle, including a trailer bus, designed, used or maintained for carrying 10 or more persons, including the driver; or a passenger vehicle designed for carrying fewer than 10 persons, including the driver, and used to carry passengers for hire.
(B) Any person who solicits, asks or begs in any public transportation vehicle, or within ten feet of any designated or posted public transportation vehicle stop, is guilty of a violation of this section if:
(i) He or she remains there after being asked to leave by the owner, driver, or operator of a public transportation vehicle; the agent of the owner, driver or operator of a public transportation vehicle; the owner or manager of a public transportation facility; the agent of the owner or manager of a public transportation facility; a member of a security force employed by the public transportation facility; or by a peace officer, as defined in Chapter 4.5 of Title 3 of the California Penal Code (commencing with Pen.Code, § 830); or
*35 (ii) Within the immediately preceding 30 days, he or she engaged in a solicitation at that location and had been asked to leave by a person specified in subdivision (c)(3)(B)(i), above.
(iii) Subdivision (c)(3)(B)(ii) is not violated if a person who has been requested to leave enters the property within the designated period and solicits, asks, or begs with the express authorization of a person specified in subdivision (c)(3)(B)(i).
(4) Restaurants. Any person who solicits, asks, or begs in any outdoor or indoor dining area of a restaurant or other establishment serving food for immediate consumption is guilty of a violation of this section if:
(A) He or she remains there after being asked to leave by the owner, manager or supervisor of the restaurant or other food establishment; the agent of the owner, manager or supervisor of the restaurant; a member of a security force employed by the restaurant; or by a peace officer, as defined in Chapter 4.5 of Title 3 of the California Penal Code (commencing with Pen.Code, § 830), acting at the request of any of the persons specified in this subdivision; or
(B) Within the immediately preceding 30 days, he or she engaged in a solicitation at that location and had been asked to leave by a person specified in subdivision (c)(4)(A), above.
(C) Subdivision (c)(4)(B) is not violated if a person who has been requested to leave enters the property within the designated period and solicits, asks, or begs with the express authorization of a person specified in subdivision (c)(4)(A).
(d) Penalty. A violation of this Section is punishable as a misdemeanor or chargeable at the City Attorney's discretion.
(e) Severability. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances.
(f) Non-exclusivity. Nothing in this chapter shall limit or preclude the enforcement of other applicable laws.
Sec[tion] 2. The City Clerk shall certify to the passage of this ordinance and cause the same to be published in some daily newspaper printed and published in the City of Los Angeles.
I hereby certify that the foregoing ordinance was introduced at the meeting of the Council of the City of Los Angeles JUN 25 1997 and was passed at its meeting of JUL 02 1997
J. MICHAEL CAREY, City Clerk By /s/ Diane M. Titus Deputy Approved JUL 15 1997 /s/ Richard J. Riordan Mayor /s/ Joel Wachs /s/ Richard Alarcon /s/ Richard Alatorre Approved as to Form and Legality /s/ James K. Hahn James K. Hahn, City Attorney By /s/ Earl E. Thomas JUL 7 1997 EARL E. THOMAS, Assistant City AttorneyNOTES
[1] For the latter proposition, the Ninth Circuit cited Xiloj-Itzep v. City of Agoura Hills (1994)
[2] We recast the question to avoid prematurely restricting the analysis of the state constitutional claim to the terminology contained in the certification request. Our order requested "[t]he certifying court ... to notify this court within 10 days should it have any objection to this court's restatement of the certified question. Briefing shall be deferred pending further order of this court...."
After receiving written notice from the Ninth Circuit that it had "no objection" to the restatement of the certified question, we ordered briefing on the above stated question. Briefing was conducted consistently with California Rules of Court, rule 29.3 (see former rule 29.5(g)(1)), now rule 29.5(h)(1)) as follows: City of Los Angeles et al., defendants and appellants, filed an opening brief on the merits. Subsequently, Los Angeles Alliance for Survival et al., plaintiffs and respondents, filed a brief on the merits, after which defendants filed a reply brief. We thereafter granted the requests of six separate entities to each file an amicus curiae brief, and then allowed the parties to respond to all such briefs in consolidated reply briefs.
After reviewing the briefs and the case law, we have concluded that the state law question before us properly may be analyzed by reference to the "content based" terminology contained in the original question, and hence this opinion answers that specific question.
[3] On the last point, the Ohio Supreme Court noted in Scott v. Bank One Trust Co., N.A. (1991)
[4] Obtaining federal jurisdiction over the state constitutional claim is a simple matter of joining the state constitutional claim with a claim under the First Amendment.
[5] As the Elliott decision observes, courts regularly render what might be viewed as "advisory" opinions in certain situations, for example in matters that have become moot while the appeal is pending. (See Elliott, supra,
Notes
[6] Likewise, it has been observed that such an ordinance implicates the First Amendment. The United States Supreme Court has held that charitable solicitation of funds is "a form of speech protected under the First Amendment" (International Society For Krishna Consciousness v. Lee (1992)
[7] As we observed in Dulaney, supra,
[8] As has been observed with respect to the same inquiry under the First Amendment, the content-neutral/content-based "distinction has enjoyed growing prominence as a judicial tool for categorizing government actions regarding expression and for justifying the level of scrutiny applied to those actions." (Williams, Content Discrimination and the First Amendment (1991) 139 U.Pa. L.Rev. 615, 616 (Williams).)
[9] The California free speech provision was modeled verbatim upon article I, section 8 of the New York Constitution of 1846 (see Fritz, More Than "Shreds and Patches": California's First Bill of Rights (1989) 17 Hast. Const. L.Q. 13, 23 & fn. 45), which in turn was derived from article VII, section 8 of the New York Constitution of 1821. At the time of California's 1849 Constitution, most of the states then in the Union had constitutional provisions similar to the New York model. (1-7 Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws (1909).) That model, in turn, may have been derived from Blackstone's formulation of the common law. (See 4 Blackstone, Commentaries 151-152 ["Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity."].)
The California free speech provision subsequently was carried over again, without substantive debate into the Constitution of 1879 (see, e.g., 1 & 3, Willis & Stockton, Debates and Proceedings, Cal. Const. Convention 1878-1879, at pp. 150, 221, 1178 [introduction of proposed provisions and debate thereon] & 1522 [describing "principal changes" made in art. I as adopted] (Willis & Stockton, Debates and Proceedings (1878-1879)), and, with only minor grammatical change, into the constitutional revisions adopted November 5, 1974 (see Cal. Const. Revision Com., Proposed Revision, art. I, § 11, pt. 5 (1971), p. 23 (Proposed Revision) [setting forth proposed art. I, § 11, which became the present art. I, § 2(a) ]).
[10] Forty other current state constitutions fall into this category. (See Constitutions of the United States, National and State (2d ed.1978); see also Ex Parte Tucci (Tex. 1993)
[11] At least one state with a provision similar to ours has found it to be, as a general matter, no broader than the First Amendment. (E.g., Eastwood Mall, Inc. v. Slanco (1994)
[12] In some areas we have found that the protection afforded by the California liberty of speech clause is coterminous with that provided by the federal Constitution. (E.g., Brown v. Kelly Broadcasting Co. (1989)
[13] In Ward, the court cited in support Renton v. Playtime Theatres, Inc. (1986)
[14] Neither the plurality in Kokinda, supra,
[15] The only decision concerning a solicitation regulation that appears to hold to the contrary under the First Amendment, Blair v. Shanahan (N.D.Cal.1991)
[16] The court further explained in Wirta: "A minimum of imagination is required to illustrate the paradoxical scope of the district's policy. A cigarette company is permitted to advertise the desirability of smoking its brand, but a cancer society is not entitled to caution by advertisement that cigarette smoking is injurious to health. A theater may advertise a motion picture that portrays sex and violence, but the Legion for Decency has no right to post a message calling for clean films. A lumber company may advertise its wood products, but a conservation group cannot implore citizens to write to the President or Governor about protecting our natural resources. An oil refinery may advertise its products, but a citizens' organization cannot demand enforcement of existing air pollution statutes. An insurance company may announce its available policies, but a senior citizens' club cannot plead for legislation to improve our social security program. The district would accept an advertisement from a television station that is commercially inspired, but would refuse a paid nonsolicitation message from a strictly educational television station. Advertisements for travel, foods, clothing, toiletries, automobiles, legal drugs all these are acceptable, but the American Legion would not have the right to place a paid advertisement reading, `Support Our Boys in Viet Nam. Send Holiday Packages.'" (Wirta, supra,
[1] The majority overlook Village of Schaumburg v. Citizens for Better Environ. (1980)
[1] The liberty of speech clause of the California Constitution, article I, section 2, subdivision (a), states in full: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
[2] United States Supreme Court Justice Kennedy has suggested that under the federal Constitution content-based regulations should not be judged by the strict scrutiny balancing test but should be generally forbidden, with a few exceptions for obscenity, defamation, and other well-defined categories of traditionally proscribable speech. (See generally Simon & Schuster, Inc. v. Members of N.Y. Crime Victims Bd., supra,
[3] The ordinance's location restriction applies not only to traditional public fora like streets and sidewalks but also to other areas like restaurants and private parking garages. To the extent that the ordinance reaches solicitation on private property not subject to the protections of article I section 2 of the California Constitution, it is not objectionable under that constitutional provision. (See Robins v. Pruneyard Shopping Center (1979)
[4] The exception is the prohibition on blocking passage of pedestrians or vehicles, which is not linked to solicitation or any other category of speech, and therefore is content neutral to the extent it restricts speech at all.
[5] Additionally, if the United States Supreme Court were faced with the facts of Heffron, supra,