59 Cal.2d 276, 26854, Wollam v. City of Palm Springs

Docket Nº:26854
Citation:59 Cal.2d 276, 29 Cal.Rptr. 1, 379 P.2d 481
Opinion Judge:[10] Tobriner
Party Name:Wollam v. City of Palm Springs
Attorney:[7] Jerome J. Bunker, City Attorney, for Defendants and Appellants. [8] Lionel Richman, Lewis Garrett and Herbert M. Ansell for Plaintiff and Respondent.
Case Date:March 12, 1963
Court:Supreme Court of California

Page 276

59 Cal.2d 276

29 Cal.Rptr. 1, 379 P.2d 481

Joe WOLLAM, Individually and on Behalf of the Members of Culinary Workers and Bartenders Union, Local 535, Plaintiff and Respondent.


CITY OF PALM SPRINGS and August Kettman, Individually and as Chief of Police, Defendants and Appellants.

L. A. 26854.

Supreme Court of California

March 12, 1963.

        In Bank

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[Copyrighted Material Omitted]

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         Jerome J. Bunker, City Atty., for defendants and appellants.

        Lionel Richman, Lewis Garrett and Herbert M. Ansell, Los Angeles, for plaintiff and respondent.

        TOBRINER, Justice.

        While an ordinance may properly regulate the use of sound trucks if narrowly drawn to avoid specific evils, such as raucous noise or traffic congestion, an ordinance which indiscriminately sweeps within its admit an inhibition of the communication of a message invades the right of free speech. Because, as we shall show, the instant ordinance falls within the latter category it cannot stand.

        On August 27, 1958, the City Council of Palm Springs enacted Ordinance No. 395, adding Chapter 44 to the city's ordinance code. The ordinance governs the use of sound trucks; it consists of five articles, each article incorporating numerous provisons. Article 440 contains definitions applicable throughout the chapter; Article 441 governs registration of trucks for commercial use; Article 442 covers trucks for non-commercial use; Article 443 sets up regulations pertaining to the use of both commercial and non-commercial trucks; and Article 444 provides penalties and a provision for separability.

        Both the commercial and non-commercial user must file a registration statement with the chief of police containing specified information, including the name of the owner and user of the truck, the wattage and volume of the equipment of the truck, and the distance for which sound will be thrown from the truck. The registration statement, after being certified by the chief of police and returned to the applicant, apparently serves as a license for use. The chief of police 'shall not return to the applicant a certified copy of the Registration Statement,' if he finds, among other matters, that the conditions of pedestrian movement are such that the sound truck 'would constitute a detriment to traffic safety' or if the application reveals that the applicant would violate the regulations prescribed in Article 443.

        Article 443 restricts the hours of use to four specified hours a day, totally forbidding utilization on Sundays and holidays; it prohibits the operation of sound trucks unless the truck

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proceeds at a speed of at least ten miles per hour; 1 it requires that the volume of sound be controlled so that it will not be audible in excess of 200 feet from the truck, not be unreasonably loud, raucous, jarring, disturbing, and not be a nuisance to persons within the area of audibility,; 2 it limits the equipment usable to that having a maximum output of 15 watts, and it includes other provisions not presently pertinent.

        Plaintiff Wollam brought this action on behalf of himself and the members of the Culinary Workers and Bartenders Union, Local 535, attacking the ordiance as unconstitutional. The trial court upheld this contention upon the ground that the ordinance unconstitutionally sought to prevent stationary use of sound trucks.

        The stipulated facts recite that 'As part of its campaign to make known to members of the public the existence of payment of substandard wages by certain employers and the existence of substandard working conditions * * * plaintiffs have from time to time adopted various means of peaceful publication. These have included, among other things, the use of sound amplication equipment containing only human speech and containing a statement of grievances of employees. Said sound amplification equipment has been placed in an automobile which has been parked at the curb during the time said sound amplification equipment is in use.' The stipulation further states that plaintiff desires to use only stationary sound trucks, and that defendants will enforce the ordinance and arrest any violators. 3

        The sole issue before this court relates to the constitutional

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validity of section 4430.3 which the trial court concluded to be invalid 'insofar as it applies to the dissemination of information from motor vehicles lawfully parked by requiring said motor vehicles to be ambulatory.' To resolve the stated problem we must answer two questions. First, does the freedom of speech guaranteed by the First Amendment, which admittedly applies to the content of the communication, extend, as well, to the means of communication? More particularly, does it include sound trucks? Second, if so, does the section in question exceed the permissible range of regulation so as to impinge on constitutionally guaranteed rights? For the reasons hereinafter set out we believe that both of these questions should be answered affirmatively.

        We turn first to the question of whether the protection of free speech as incorporated into the Fourteenth Amendment 4 extends to the use of a sound truck as a means of dissemination of opinion. Our problem here emanates primarily from two decisions of the United States Supreme Court rendered within a half year of one another. Reconciliation of the results reached in these two cases has caused difficulty to the commentators 5 and to this court. 6

        In the first of these cases, Saia v. New York (1948), 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574, the court declared unconstitutional an ordiance of the City of Lockport, New York, which prohibited the use of sound amplifying equipment unless authorized by the chief of police. Saia, a Jehovah's Witness, suffered conviction for violation of the ordinance in setting up a loud speaker in a public park and broadcasting religious programs without obtaining a permit from the chief of police.

        Justice Douglas, speaking for the majority of the United States Supreme Court, held that the use of this means of communication fell within the protection of free speech of the First Amendment and that the ordinance failed. Instead of narrowly and specifically prohibiting the abuses that precipitated the ordinance, it granted a general discretion to the chief of police which could be applied in an area wide of the mark. The court explained, 'The statute is not narrowly

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drawn to regulate the hours or places of use of loud-speakers, or the volume of sound (the decibels) to which they must be adjusted. * * * The right to be heard is placed in the uncontrolled discretion of the Chief of Police. He stands athwart the channels of communication as an obstruction which can be removed only after criminal trial and conviction and lengthy appeal. A more effective previous restraint is difficult to imagine * * *. Loud-speakers are today indispensable instruments of effective public speech. The sound truck has become an accepted method of political campaigning. It is the way people are reached. * * *'

        Indicating that narrowly drawn regulation of sound trucks would be permissible, although prohibition in the uncontrolled discretion of the chief of police would fail, Justice Douglas stated, 'The present ordinance would be a dangerous weapon if it were allowed to get a hold on our public life. Noise can be regulated by regulating decibels. The hours and place of public discussion can be controlled. But to allow the police to bar the use of loud-speakers because their use can be abused is like barring radio receivers because they too make a noise. * * * Any abuses which loud-speakers create can be controlled by narrowly drawn statutes. When a city allows an official to ban them in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas. * * *' (Pp. 560-562, 68 S.Ct. p. 1150; emphasis added.)

        Justice Frankfurter, with Justices Reed and Burton concurring, dissented upon the basis that 'the limitations by New York upon the exercise of appellant's rights of utterance did not * * * exceed the accommodation between the conflicting interests which the State was here entitled to make in view of the time and place and circumstances.' (At p. 566, 68 S.Ct. at p. 1152; emphasis added.) Justice Jackson, alone of the members of the Court, held that the regulation did not involve the issue of free speech.

        In the second case to which we alluded, supra, Kovacs v. Cooper (1949), 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, the Supreme Court sustained a conviction under an ordinance of the City of Trenton, New Jersey, which read: 'That it shall be unlawful for any person * * * to * * * operate * * * for any * * * purpose whatsoever, on or upon the public streets, alleys or thoroughfares in the City of Trenton, any devise known as a sound truck, loud speaker or sound amplifier * * * which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing

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upon said streets or public places aforementioned.' (P. 78, 69 S.Ct. p. 449; emphasis added.)

        Chief Justice Vinson and Justice Burton joined with Justice Reed, who announced the opinion of the court. While the decision construed and upheld the ordinance as a limited prohibition of equipment emitting 'loud and raucous noises,' it did not sustain the power of the state absolutely to prohibit the use of sound trucks. In fact, Justice Reed stated: 'Absolute prohibition within municipal limits of all sound amplification, even though reasonably regulated in place, time and volume, is undesirable and probably unconstitutional as an unreasonable interference with normal activities.' (At p. 82, 69 S.Ct. at p. 451.) The Court sustained the Trenton...

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