Buxbom v. City of Riverside

• Decision Date: 23 September 1939
• Docket Number: No. 494-Y.,494-Y.
• Citation: 29 F. Supp. 3
• Court: U.S. District Court — Southern District of California
• Parties: BUXBOM v. CITY OF RIVERSIDE et al.

29 F. Supp. 3

BUXBOM v. CITY OF RIVERSIDE et al.

No. 494-Y.

District Court, S. D. California. Central Division.

September 23, 1939.

A. L. Wirin and Leo Gallagher, both of Los Angeles, Cal., for plaintiff.

Eugene Best, City Atty., of Riverside, Cal., for defendants.

YANKWICH, District Judge.

The Complaint seeks to enjoin the enforcement of a city ordinance. The plaintiff asks for an injunction pending suit. The defendants have moved to dismiss.

Involved in this proceeding is the validity of an ordinance of the City of Riverside, California, regulating handbills. It was adopted recently, after an injunction had been granted by me against the enforcement of a prior ordinance on the ground of unconstitutionality.

As the subject has been clarified lately by several decisions, especially, Lovell v. Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; and Hague v. C. I. O., 1939, 3 Cir., 101 F.2d 774 and Hague v. C. I. O., 1939, 59 S.Ct. 954, 83 L.Ed. 1423; 59 Supreme Court Reporter 454, we may well start by setting down, generally, certain of the constitutional norms which these decisions establish. The constitutional guarantee of free speech and free press, U.S.Constitution, Amendment 1, U.S.C.A. is not an injunction against the states or their subdivisions. Permoli v. Municipality No. 1 of New Orleans, 1845, 3 How. 589, 609, 11 L.Ed. 739; State of Ohio ex rel. Lloyd v. Dollison, 1904, 194 U.S. 445, 24 S.Ct. 703, 48 L.Ed. 1062.

Nevertheless, the Supreme Court has, in recent years, placed the guarantee of a free press and free speech under the protective shield of the due process clause of the Fourteenth Amendment. Whitney v. California, 1927, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Stromberg v. California, 1931, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484; Near v. Minnesota ex rel. Olson, 1931, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 357; Grosjean v. American Press Company, Inc., 1936, 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; De Jonge v. Oregon, 1937, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949.

Back of these decisions is the fact that the right of free expression, beginning with the struggle in the Long Parliament in England against licensed printing (against which Milton directed his famous "Areopagitica") when it was considered merely as freedom from previous restraint (see Patterson v. Colorado, 1907, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879, 10 Ann. Cas. 689) became, under later constitutional developments in the United States, a substantive right free from invasion by governmental agencies. Schenck v. United States, 1919, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, and cases supra.

Notwithstanding the primacy of this right, in its application, recognition has been given to the exercise of governmental functions which may result, not in absolute prohibition of its exercise, but in limitations as to manner or time or place of exercise. See, note, Freedom of The Press, 1939, 12 So.Cal.Law Rev. 466. Free distribution and circulation are a part of the freedom of the press. Lovell v. Griffin, supra; Grosjean v. American Press Co., Inc., supra. And see my opinion in People v. Armentrout, 1931, 118 Cal.App. Supp. 761, 1 P.2d 556.

So far as material to the discussion to follow, the boundaries of control of advertising or pamphlets are stated very clearly in Lovell v. City of Griffin, supra, 303 U.S. at page 451, 58 S.Ct. at page 668, 82 L.Ed. 949:

"The ordinance is not limited to `literature' that is obscene or offensive to public morals or that advocates unlawful conduct. There is no suggestion that the pamphlet and magazine distributed in the instant case were of that character. The ordinance embraces `literature' in the widest sense. The ordinance is comprehensive with respect to the method of distribution. It covers every sort of circulation `either by hand or otherwise.' There is thus no restriction in its application with respect to time or place. It is not limited to ways which might be regarded as inconsistent with the maintenance of public order, or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the city manager.

"We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his `Appeal for the Liberty of Unlicensed Printing.' And the liberty of the press became initially a right to publish `without a license what formerly could be published only with one.' While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. See Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879, 10 Ann.Cas. 689; Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713-716, 51 S.Ct. 625, 630, 75 L.Ed. 1357; Grosjean v. American Press Co., 297 U. S. 233, 245, 246, 56 S.Ct. 444, 447, 80 L.Ed. 660. Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form." (Italics added.)

Limitations on the time and place of distribution and prohibitions aiming to prevent the annoyance of citizens and the misuse or cluttering of public streets, are thus given unequivocal judicial sanction.

By the tests so laid down, the ordinance under discussion is not vulnerable. Its full text is given in the margin.¹ By allowing the handing of handbills and advertising matter on the streets to passersby and the delivery of the same personally "to those who are willing to accept" them, by specifically permitting the street sale of newspapers and their delivery to subscribers or "to any person who has requested the delivery of the same", the ordinance, in effect, permits distribution without limit in all public and private places of all literature, pamphlets, dodgers, handbills and advertising matter. The ordinance does prohibit the placing of handbills or advertising matter (we use these two expressions to designate all kinds of printed matter without repeating the enumeration of the ordinance) on the streets, in parks, in private automobiles, in the yards or grounds of any house, building, structure or on any porch or door step or vestibule "or in any public hall way thereof" or upon any vacant lot or other private property "without having first obtained the permission of the owner, or of an adult resident or occupant thereof".

The plaintiff is charged with the violation of Section 6 of the ordinance, by throwing certain advertising literature on the grounds of a private residence in the City of Riverside, without first obtaining the permission of the owner.

I cannot see how this ordinance, and especially the provisions in sections 4, 5, and 6, requiring permission of the owner of property before putting handbills or advertising on it, can be said to violate the right of a free press.

Freedom of the press is a part of that freedom of expression which includes free speech.

The right to speak freely does not imply the right to force one's speech on another's private premises.

As I stated at the trial, no constitutional principle gives one the right to stand on my front lawn and deliver a speech to whomever may listen. Pragmatic American speech disposes of any such claim by the familiar expression "go and hire a hall". This is also sound constitutional doctrine.

In like manner, the right to distribute literature and pamphlets does not imply the right to "force" acceptance by placing them on another person's premises without his permission.

Governmental agencies may protect a property owner in the enjoyment of his property. They may ward off those who would annoy him, by trespassing on it in one way or another. These are verités à la Palisse. See note, Freedom of the Press, 1939, 12 So. Cal.Law Rev. 466.

If, as claimed by the petitioner, this curtails the right of the occupant of property to receive literature, and advertising, the answer is twofold. The plaintiff, not being in that position, cannot complain of the invasion of rights which do not affect him.

More, the occupant of premises may have the full benefit of limitless distribution by indicating his consent directly to a particular distributor, or, generally, by placing upon his premises a sign indicating that "all distribution is welcome".

There is no more inconvenience in this than in the customary, "No solicitors or peddlers" signs by which persons shield their privacy.

Nor is any constitutional norm violated when he who would spread literature or advertising on private premises is compelled to obtain the owner's consent. A man's home is still his castle.

If, to paraphrase Chatham, the King is not free to enter the humblest cottage without being guilty of trespass, what "Divinity doth hedge" the purveyor of handbills that he should be free to enter?

If, by the common law of England, the humblest cotter, to quote Chatham, "may bid defiance to all the forces of the crown", and a similar right is guaranteed by the Fourth Amendment to the Constitution of the United States, whence the right of the dispenser of printed matter to immunity from this?

If governmental agencies may aid the enjoyment of people's homes by zoning ordinances (Euclid, Ohio, v. Ambler Realty Co., 1926, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016); if the erection of bill boards may be made dependent upon consent of owners of property in...