Berry v. City of Santa Barbara

• Citation: 40 Cal.App.4th 1075,47 Cal.Rptr.2d 661
• Decision Date: 05 December 1995
• Docket Number: No. B085586,B085586
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9267, 95 Daily Journal D.A.R. 16,107 Wayne C. BERRY, Plaintiff and Appellant, v. CITY OF SANTA BARBARA et al., Defendants and Respondents. Civ.

Page 661

47 Cal.Rptr.2d 661

40 Cal.App.4th 1075, 95 Cal. Daily Op. Serv. 9267,

95 Daily Journal D.A.R. 16,107

Wayne C. BERRY, Plaintiff and Appellant, v. CITY OF SANTA BARBARA et al., Defendants and Respondents.

Civ. No. B085586.

Court of Appeal, Second District, Division 6, California.

Dec. 5, 1995.

As Modified on Denial of Rehearing Jan. 3, 1996.

Stanley Fleishman; Fleishman, Fisher & Moest, Los Angeles, for Appellant.

Daniel J. Wallace, City Attorney, City of Santa Barbara, Janet K. McGinnis, Assistant City Attorney, for Respondents.

YEGAN, Associate Justice.

We are called upon to delicately balance precious First Amendment rights against the government's interest in protecting minors from viewing harmful matter. Wayne Berry, who distributes an "adult" publication from sidewalk newsracks, challenged enforcement of a city ordinance of the City of Santa Barbara (City) on the theory that it violated the United States Constitution. The trial court disagreed. We have strictly scrutinized the ordinance, section 5.66.110 of the Santa Barbara Municipal Code, and conclude that, on its face, the ordinance passes constitutional muster. However, the trial court did not expressly rule on whether the front page of the subject publication is harmful to minors. We cannot affirm the judgment on the pleadings insofar as it requires "L.A. X ... Press" to be blinded. We remand for an express determination on the issue of whether the front page of the publication is harmful to minors.

The Ordinance and Statute

Chapter 5.66 of the Santa Barbara Municipal Code regulates the registration, placement and appearance of newsracks within the City. Section 5.66.110, the only portion of chapter 5.66 which is at issue here, provides: "No material which is harmful to minors, as defined in Section 313 of the Penal Code of the State, shall be displayed in a public place, other than a public place from which minors are excluded, unless blinder racks are placed in front of the material so that the lower two-thirds ( 2/3) of the material is not exposed to view."

Penal Code section 313, subdivision (a), defines "harmful matter" as "matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." The Publication.

Appellant distributes an "adult" or "erotic" publication, the "L.A. X ... Press," from locked, sidewalk newsracks outside the post office, bus station, grocery stores, restaurants and other locations throughout the City. The publication consists primarily of advertisements for massage parlors, telephone sex lines, other forms of "adult" entertainment, and "personal" advertisements. The advertisements often are accompanied by sexually explicit photographs leaving little to the imagination. The publication also prints news articles, music and movie reviews, and editorials. The publication's front page appears to typically contain a photograph of a scantily clad woman in a provocative pose suggesting sexual conduct. ¹

The Litigation.

The City enacted the ordinance on November 23, 1993. Appellant filed his complaint the next day. He argued in the trial court, as he does here, that the City ordinance fails strict constitutional scrutiny because it unnecessarily prevents adults from viewing the front page of publications distributed through newsracks, even when the front page is not itself harmful material. He further argues that the ordinance violates the equal protection clause of the Fourteenth Amendment because it applies only to the display of "harmful matter" in newsracks but not to the display of similar materials in bookstores and other venues. Finally, appellant contends that the ordinance is facially overbroad because it does not contain a scienter requirement and could, therefore apply to those who display material without knowledge of its harmful character.

The trial court denied appellant's request for a preliminary injunction and shortly thereafter granted the City's motion for judgment on the pleadings. In granting the motion, the trial court made certain findings: (1) The ordinance is permitted by Penal Code section 313.1, subdivision (d); ² (2) the publication constitutes harmful matter within the meaning of the ordinance; (3) "when harmful matter is displayed in a public place that does not exclude minors, the city may require that it be blinded whether or not the cover of the harmful matter contains harmful matter itself"; (4) the ordinance "has a proper purpose and effect" because it allows members of the public to identify harmful matter; and (5) the ordinance does not violate the First and Fourteenth Amendments to the United States Constitution because the publications are harmful to minors and plaintiff is, therefore, "subject to display and sale restrictions under city ordinance and state law as are all persons displaying and selling harmful matter in public places." ³

Standard of Appellate Review and Rules of Construction

In reviewing the trial court's decision to sustain the demurrer and grant judgment on the pleadings, we assume the truth of all material facts properly pleaded in the amended complaint, but not contentions or conclusions of fact or law. We also consider matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58; Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.) In this First Amendment case, we review de novo, i.e., we independently decide, whether the ordinance violates the First and Fourteenth Amendments to the United States Constitution. (Gonzales v. Superior Court (1986) 180 Cal.App.3d 1116, 1122, 226 Cal.Rptr. 164 [city sign ordinance]; Sussli v. City of San Mateo (1981) 120 Cal.App.3d 1, 9, 173 Cal.Rptr. 781 [city sign ordinance]; see also Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499-511, 104 S.Ct. 1949, 1958-1966, 80 L.Ed.2d 502, 515-523; McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 841-846, 231 Cal.Rptr. 518, 727 P.2d 711; Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 909, 31 Cal.Rptr. 800, 383 P.2d 152; L.A. Teachers Union v. L.A. City Board of Education (1969) 71 Cal.2d 551, 557, 78 Cal.Rptr. 723, 455 P.2d 827.)

Even though appellant has not been prosecuted for failing to install blinder racks, we "proceed with caution and restraint, as invalidation may result in unnecessary interference with a [city] regulatory program." (Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125.) If possible, the ordinance must be interpreted to avoid constitutional difficulties. (Frisby v. Schultz (1988) 487 U.S. 474, 483, 108 S.Ct. 2495, 2501-2502, 101 L.Ed.2d 420.) The ordinance will not be invalidated if it is readily susceptible to a narrowing construction that would make it constitutional. (Virginia v. American Booksellers, Inc. (1988) 484 U.S. 383, 397, 108 S.Ct. 636, 645, 98 L.Ed.2d 782; Erznoznik v. City of Jacksonville, supra, 422 U.S. at p. 216, 95 S.Ct. at p. 2276.)

Standard of Obscenity and The Protection of Minors

"Sexual expression which is indecent but not obscene is protected by the First Amendment.... The Government may ... regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. [Citations.] The Government may serve this legitimate interest, but to withstand constitutional scrutiny, 'it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. [Citations.] It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." (Sable Communications v. FCC (1989) 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93, 105; Ginsberg v. New York (1968) 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195, 203-204.) This pronouncement from the United States Supreme Court certainly gives the California Legislature and local government the constitutional power to enact laws designed to keep harmful matter away from minors.

Judged by adult standards, the publications at issue here are not obscene. The City so conceded at oral argument. Accordingly, they and their distribution through newsracks are entitled to First Amendment protection. (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 302, 138 Cal.Rptr. 53, 562 P.2d 1302; Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1381, 259 Cal.Rptr. 918.)

The Ordinance Does Not Violate The Free Speech and Press Provisions of the First Amendment.

Because laws that attempt to regulate expression "pose a particular danger of abuse by the State," (Arkansas Writers' Project Inc. v. Ragland (1987) 481 U.S. 221, 228, 107 S.Ct. 1722, 1727, 95 L.Ed.2d 209, 218), they are carefully scrutinized. (Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S. 622, ----, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497, 516-517.) The level of scrutiny applied depends upon whether the regulation is content based or content neutral. "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, 512 U.S. at p. ----, 114 S.Ct. at p. 2459, 129 L.Ed.2d at p. 518.) In determining whether a regulation is content-based, the "principle inquiry ..., is whether the government has adopted a...