LA Alliance for Survival v. City of LA

• Decision Date: 02 March 2000
• Docket Number: No. S073451.,S073451.
• Court: California Supreme Court
• Parties: LOS ANGELES ALLIANCE FOR SURVIVAL et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

93 Cal.Rptr.2d 1

22 Cal.4th 352

993 P.2d 334

LOS ANGELES ALLIANCE FOR SURVIVAL et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

No. S073451.

Supreme Court of California.

March 2, 2000.

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. 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 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) 157 F.3d 1162, 1163-1164

(Los Angeles Alliance I)) as follows:

"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) 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971

) ], concluded that [plaintiffs] were likely to succeed on the merits of their claim and found that [defendants] had conceded irreparable harm for purposes of the preliminary injunction. Relying on the California appellate decision in Alternatives [for California Women, Inc. v. County of Contra Costa (1983) 145 Cal.App.3d 436, 193 Cal.Rptr. 384 (Alternatives) ] and on the Ninth Circuit's decision in Carreras [v. City of Anaheim (9th Cir.1985) 768 F.2d 1039 (Carreras) ], the district court held that the ordinance was content-based under the California Liberty of Speech Clause [ (and hence subject to strict, rather than intermediate, scrutiny) ].... [Defendants] timely appealed the grant of the preliminary injunction to the Ninth Circuit." (Fns.omitted.)

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, 497 U.S. 720, 730 [110 S.Ct. 3115, 111 L.Ed.2d 571] (1990)

[ (Kokinda) ]. In contrast, the California appellate court decision in Alternatives [, supra, 145 Cal. App.3d 436, 193 Cal.Rptr. 384,] ... [held] that regulations of solicitation are reviewed as content-based restraints of speech under the Liberty of Speech Clause of the California Constitution [and hence subject to strict scrutiny].

".......................

"[Subsequent to Alternatives, supra, 145 Cal.App.3d 436, 193 Cal.Rptr. 384, but prior to Kokinda, supra, 497 U.S. 720, 110 S.Ct. 3115, the court in Carreras, supra, 768 F.2d 1039,] ... found that `Alternatives ... is most plausibly interpreted as independently grounded on the California Liberty of Speech Clause.' 768 F.2d 1039, 1048 n. 21.... Applying Alternatives, the [Carreras ] court found that an ordinance [regulating solicitation] was contentbased under the California Constitution [and hence subject to strict scrutiny]. Id. at 1048.

".... We must determine whether [Alternatives, supra, 145 Cal.App.3d 436, 193 Cal.Rptr. 384, and Carreras, supra, 768 F.2d 1039, or Kokinda, supra, 497 U.S. 720, 110 S.Ct. 3115, properly reflects] the Supreme Court of California's interpretation of California's Liberty of Speech Clause, a critical issue in the appeal before us." (Los Angeles Alliance I, supra, 157 F.3d 1162, 1164-1165.)

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, 157 F.3d 1162, 1165.)¹

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, 157 F.3d 1162, 1162-1163

.) The certification request also specified, however, that its "phrasing...