Van Nuys Publishing Co. v. City of Thousand Oaks
| Decision Date | 08 January 1971 |
| Citation | 92 Cal.Rptr. 76,14 Cal.App.3d 167 |
| Parties | The VAN NUYS PUBLISHING COMPANY, Incorporated, etc., Plaintiff and Appellant, v. The CITY OF THOUSAND OAKS, etc., Defendant and Respondent. Civ. 35846. |
| Court | California Court of Appeals Court of Appeals |
Willard R. Pool, Garden Grove, for plaintiff and appellant.
Hathaway, Clabaugh & Perrett by E. E. Clabaugh, Jr., Ventura, for defendant and respondent.
Plaintiff and appellant, Van Nuys Publishing Co., Inc. (hereinafter referred to as Publisher) sought to enjoin the City of Thousand Oaks (hereinafter referred to as the City) from enforcement of one of its ordinances on the grounds that the ordinance unconstitutionally abridged freedom of speech and press. The trial court found the ordinance to be 'constitutional in general and as applied to plaintiff,' and denied the injunction. Publisher appeals.
Publisher's newspaper 'The Valley News and Green Sheet,' is a newspaper of general circulation which contains local news and advertising as well as general information covering social, economic and religious subject matters. It is distributed in parts of Los Angeles and Ventura County.
Publisher's circulation in 1966 in the City of Thousand Oaks was 3500. Some of Publisher's papers were distributed free and some were distributed by way of subscription contracts. Publisher's circulation in Thousand Oaks was 'controlled' in that Publisher knew where every copy was distributed. Finally, both non-subscription and subscription home deliveries were made by newsboys between the ages of eleven and fifteen.
In July 1966, City enacted Ordinance No. 98, to become effective on or about the 18th of August 1966.
Section 4 of the Ordinance reads as follows: 1
'No person may throw, cast, distribute, scatter, deposit, pass out, give away, circulate or deliver any handbill, dodger, circular, newspaper, paper, booklet, poster, other printed matter or advertising literature of any kind in the yard or grounds of any house, building structure, on any porch, doorstep or vestibule, in any public hallway, or upon any vacant lot or other private property without having first obtained permission of the owner or of an adult resident or occupant thereof.' Violation of this ordinance is made a misdemeanor.
Section 1 of Ordinance No. 98 serves as the City's preamble for the ordinance and declares that
On August 12, 1966, the Superior Court for the County of Ventura issued a preliminary injunction enjoining the enforcement of the ordinance against Publisher.
On November 7, 1967, the superior court rendered judgment in favor of Publisher and permanently enjoined City from enforcing Ordinance No. 98 against Publisher. Thereafter, City moved for a new trial. The court reopened the case on May 17, 1968, in lieu of granting a new trial. Finally, on March 14, 1969, the court reversed its previous position and ordered judgment for City, resting its decision on the authority of Di Lorenzo v. City of Pacific Grove, 260 Cal.App.2d 68, 67 Cal.Rptr. 3.
Publisher's attack on the City's ordinance raises two critical issues. First, Publisher argues that the section in question is not within the constitutionally permissible range of legislative regulation and impinges on Publisher's guaranteed rights of free speech and free press.
Second, ostensible distinctions between the language of the Di Lorenzo ordinance and the City's ordinance require consideration of whether City's ordinance is too broadly constructed and includes within its scope, activities which cannot constitutionally be regulated. For reasons hereinafter noted we conclude that the stated purpose of Ordinance No. 98 is both legitimate and substantial and is not 'pursued by means that broadly stifle fundamental personal liberties.' (Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231.)
The reported opinions of the appellate courts throughout this country contain a chronicle of numerous and colorful conflicts between municipal authorities and persons who contended that legislative enactments of the municipalities impinged upon their various constitutional freedoms.
We are called upon to examine once again the question of whether the actions of a municipal legislative body in seeking to protect its constituency against conduct which is apparently offensive to a majority has overstepped constitutional boundaries.
We agree with the trial judge in the instant case that the result reached in Di Lorenzo, supra, and the rationale supporting it are dispositive of the issue of municipal regulation of Publisher's activities.
The express purpose of Section 4 of the ordinance is to alleviate acts which were determined by City to constitute a public nuisance to 'communities within the City and a considerable number of citizens * * *'
In Di Lorenzo v. City of Pacific Grove, supra, (where a similarly worded ordinance was held not violative of any constitutional provision) the City of Pacific Grove indicated its reason for enacting the ordinance was the need to prevent newspapers and advertising material from collecting on residential property. The ordinance's specific purpose was to protect residents who are unaware that such material was going to be thrown on their property and who are unable to make proper provisions for the stopping of such deliveries. The City of Pacific Grove determined that such an ordinance was a reasonable regulation necessary to prevent burglaries which directly resulted from the notice of the absence of the owner provided to criminals by the accumulation of uncollected newspapers. In other words, the City of Pacific Grove sought to prevent burglaries and the City of Thousand Oaks seeks to prevent litter.
It is clear that while each city selected a different goal to be achieved by its ordinance, enforcement of either ordinance serves both goals and either stated objective is a proper matter for the exercise of the municipal police power.
On the other hand, if an ordinance is constitutionally defective the stated purpose of the City Council, however praiseworthy, would not save it.
The crucial issue before this court is whether Ordinance No. 98 wrongfully prohibits activity which enjoys a preferred status under both the United States and California Constitutions. The Supreme Court 'has characterized the freedom of speech and that of the press as fundamental personal rights and liberties.' (Schneider v. Town of Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155.) (See also De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949; Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138.)
The court in Schneider, supra, 308 U.S. at 161, 60 S.Ct. at 151, underscored the importance of preventing the restriction of enjoyment of these liberties. The court therein set out the following constitutional admonition concerning legislative regulation of speech or the press: (See also Martin v. Struthers, 319 U.S. 141, 144, 63 S.Ct. 862, 87 L.Ed. 1313.)
Although freedom of speech and press are preferred rights which enjoy special constitutional protection, such protection will not deter reasonable and necessary regulation of such activities when it is shown that the purpose and effect of the regulation substantially outweighs the impingement on the exercise of these freedoms. (See Wollam v. City of Palm Springs, 59 Cal.2d 276, 285, 29 Cal.Rptr. 1, 379 P.2d 481.)
Publisher correctly notes that its right to distribute and the homeowner's right to receive Publisher's papers are firmly embraced by the constitutional protection of speech and press and therefore Publisher's activities are deserving of the same protection afforded 'pure speech.' (Martin, supra, 319 U.S. at 143, 63 S.Ct. 862.) Accordingly, Publisher contends that the Section 4 requirement of obtaining advance approval from the householder for the distribution of its newspapers directly abridges its right to free speech and press in that the ordinance is an over-reaching and onerous requirement which would in effect make it impossible for it to distribute its product.
It contends that the cost of third class mail is prohibitive and that the ordinance in effect requires that prior to every delivery the newsboy would have to request permission to deliver the paper. This latter contention is predicated on the fact that the ordinance does not state that once approval by the householder is given, it is good until revoked.
An enactment of a legislative body carries with it a presumption of constitutionality. (See Corning Hospital Dist. v. Superior Court, 57 Cal.2d 488, 496, 20 Cal.Rptr. 621, 370 P.2d 325; Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620, 626, 91...
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Young v. Municipal Court
...or purchaser.'2 On March 26, 1971, the California Supreme Court ordered a hearing in a parallel case. (Van Nuys Pub. Co. v. City of Thousand Oaks, 14 Cal.App.3d 167, 92 Cal.Rptr. 76.) Thus the court has demonstrated a desire to review local ordinances of the kind sustained in Di Lorenzo, ...