City of Hillsboro v. Purcell

• Decision Date: 20 September 1988
• Citation: 306 Or. 547,761 P.2d 510
• Parties: , 57 USLW 2199 CITY OF HILLSBORO, Petitioner on Review, v. David L. PURCELL, Respondent on Review. CITY OF HILLSBORO, Petitioner on Review, v. Pete N. DOMINICI, Respondent on Review. TC 85-0424, 85-0425; CA A41670, A41671; SC S34643.
• Court: Oregon Supreme Court

Page 510

761 P.2d 510

306 Or. 547, 57 USLW 2199

CITY OF HILLSBORO, Petitioner on Review, v. David L. PURCELL, Respondent on Review.

CITY OF HILLSBORO, Petitioner on Review, v. Pete N. DOMINICI, Respondent on Review.

TC 85-0424, 85-0425; CA A41670, A41671; SC S34643.

Supreme Court of Oregon In Banc.

Argued and Submitted March 2, 1988.

Decided Sept. 20, 1988.

Todd A. Bradley, Portland, argued the cause and filed the petition for petitioner on review.

Gordon T. Carey, Jr., Portland, argued the cause for respondents on review. With him on the briefs was David M. Taylor, Portland.

James M. Coleman, Paul C. Elsner and Peter A. Kasting, Lake Oswego, filed an amicus curiae brief on behalf of the League of Oregon Cities.

Thomas A. Balmer, Portland, filed an amicus curiae brief on behalf of ACLU Foundation of Oregon, Inc.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Kendall M. Barnes, Asst. Atty. Gen., Salem, filed an amicus curiae brief on behalf of the State of Or.

CAMPBELL, Justice.

We must decide whether Article I, section 8, of the Oregon Constitution, providing that "[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever * * *," prohibits a Hillsboro city ordinance which makes criminal "the practice of persons going in and upon private property or calling at residences * * * not having been requested or invited so to do * * * for the purpose of soliciting orders for the sale of goods, wares, merchandise and/or for the purpose of disposing of and/or peddling or hawking the same * * *." Ordinance No. 2488-2-72, section 1. ¹

Defendants were convicted in municipal court for selling household products door-to-door and fined $110 each. The cases were consolidated and tried de novo on appeal to the circuit court, ORS 221.350, 221.360, which affirmed the convictions. On appeal, the Court of Appeals held that the ordinance violated Article I, section 8, of the Oregon Constitution and reversed the convictions. 87 Or.App. 649, 743 P.2d 1119 (1987). We affirm.

I

The Hillsboro Charter authorizes the city council to "license, tax and regulate any and all persons engaging in mercantile manufacturing, mechanical, business or professional pursuits or vocations * * *," "to prevent and remove nuisances and to declare what shall constitute the same * * *." Chapter VI, §§ 39, 52. In addition to civil regulation, the council may "punish by fine or imprisonment or both any person or persons who shall cause or continue any nuisance * * *." Chapter VI, § 53. The city has declared door-to-door solicitation a nuisance punishable as a misdemeanor.

Cases from an earlier era disposed of anti-solicitation ordinances similar to Hillsboro's as beyond authority of local governments to enact under their "police" powers. Jewel Tea Co. v. City of Geneva, 137 Neb. 768, 291 N.W. 664 (1940); N.J. Good Humor, Inc., v. Bradley Beach, 123 N.J.L. 21, 7 A.2d 824 (1939), 124 N.J.L. 162, 11 A.2d 113 (1940) (former judgment vacated and ordinance struck); White v. Town of Culpeper, 172 Va. 630, 1 S.E.2d 269 (1939); Prior v. White, 132 Fla. 1, 180 So. 347, 116 A.L.R. 1176 (1938); Tea Company v. Bel Air, 172 Md. 536, 192 A. 417 (1937); City of Orangeburg v. Farmer, 181 S.C. 143, 186 S.E. 783 (1936). But we no longer take such a limited view of the regulatory powers of governments, Burt v. Blumenauer, 299 Or. 55, 61, 699 P.2d 168 (1985), even if we do not ordinarily make reference to "police" powers. See Linde, Without "Due Process," 49 Or.L.Rev. 125, 146-158 (1970). The Hillsboro City Council has, within its authority, designated door-to-door sales a nuisance punishable as a misdemeanor. ² The question is whether the authorized ordinance exceeds constitutional limitations.

II

The Hillsboro "Green River" ordinance is an almost verbatim replica of its namesake enacted by the town of Green River, Wyoming, in 1931. The ordinances seemed to have swept the country in the Thirties, followed closely by court challenges to their legality. See Note and Comment, Constitutional Law--Freedom of Press--Freedom of Speech--Right of Religious Sects to Distribute Literature, 21 Or.L.Rev. 76 (1941). Tea, brush, ice cream, hosiery, magazine and vacuum cleaner merchants, some representing substantial national concerns which generated business only through door-to-door sales, challenged the ordinances under theories then in currency: violation of liberty of contract, interference with interstate commerce, discrimination against non-residents and, as mentioned above, excessive police powers. As the above cases indicate, the ordinances were sometimes struck down; in other cases they were sustained. See City of Shreveport v. Cunningham, 190 La. 481, 182 So. 649 (1938); Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456 (1936). When the United States Supreme Court upheld a Louisiana town's conviction of a door-to-door magazine seller, an employee of a national periodical distributor, the legality of the "Green River" ordinance was, for a time, secure. Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951). Shortly after the Breard decision, this court upheld Bend's "Green River" ordinance against, among other federal constitutional claims, a First Amendment challenge. Phillips v. City of Bend, 192 Or. 143, 161, 234 P.2d 572 (1951).

In Breard the U.S. Supreme Court dismissed the asserted free speech claims of "solicitors for gadgets and brushes" because selling, though involving speech and, in that case, a printed product, carried a "commercial feature." 341 U.S. at 641, 642, 71 S.Ct. at 932, 933. The sentiments echoed those of an earlier opinion, Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), which upheld New York city's prohibition on handbill distribution in the streets as applied to a primarily commercial advertisement for a submarine tour. In Breard the Court carefully distinguished the door-to-door contacts that governments could not prohibit: the distribution of religious or political handbills and circulars, an activity the Court in Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), had called "essential to the poorly financed causes of little people." 319 U.S. at 146, 63 S.Ct. at 865; cf. DeBartolo Corp. v. Fla. Gulf Coast Tr. Counc., 485 U.S. 568, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) (construing the NLRA not to prohibit peaceful handbilling by union during labor dispute). The Breard dissenters objected to enforcing the ordinance against distributors of magazines, a printed product, but they were willing to uphold the ordinance if applied to a "merchant" who goes door-to-door "selling pots." 341 U.S. at 650 note *, 71 S.Ct. at 836 note *, Martin v. City of Struthers, 319 U.S. at 144, 63 S.Ct. at 863. When a Virginia newspaper publisher was convicted for printing an advertisement for legal abortions at a New York clinic in violation of a Virginia statute prohibiting "promoting" abortions, the full Court confronted restraints on "freedom of * * * the press" and embarked on a reconsideration of First Amendment protections for "commercial" speech. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).

The United States Supreme Court has since come to consider "commercial" speech "protected" by the First Amendment. It has held, though not with uniformity of rationale, that governments can regulate it to a greater degree and for different purposes than other protected speech. Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981); Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 98 S.Ct. 1925, 56 L.Ed.2d 444 (1978); Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Having placed the ordinance in its historical setting, we turn to the Oregon Constitution.

III

The nature of the prohibition, either civil or criminal, is immaterial to the first sentence of Article I, section 8, which directs that "no law" shall restrict or restrain speech, writing and printing. ³ We have made distinctions between civil and criminal remedies with regard to an "abuse" of speech or writing and held that civil remedies but not criminal may redress "abuses" of these rights. Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 733 P.2d 430 (1987); Bank of Oregon v. Independent News, 298 Or. 434, 693 P.2d 35 (1985); In re Lasswell, 296 Or. 121, 673 P.2d 855 (1983); Hall v. The May Dept. Stores, 292 Or. 131, 145-46, 637 P.2d 126 (1981); Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979). These cases, with the exception of Lasswell, concern abuses after they cause damage, and in Lasswell the attorney disciplinary rule prohibiting prosecutors from commenting publicly on an ongoing investigation or trial was based on incompatibility with the prosecutor's function and was held to require a highly likely effect. 296 Or. at 126, 673 P.2d 855. With regard to prohibitions on speech or writing before some completed abuse of these rights, we have held that government, with few historical exceptions, cannot prohibit speech outright by making it a crime. State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982); State v. Spencer, 289 Or. 225, 611 P.2d 1147 (1980). Neither may it do so through civil prohibitions. City of Portland v. Welch, 229 Or. 308, 320, 364 P.2d 1009, 367 P.2d 403 (1961) (on rehearing, unrestrained, unguided discretion to grant licenses can be a prior restraint prohibited by Article I, section 8); see also Ivancie v. Thornton, 250 Or. 550, 557, 443 P.2d 612 (1968) (First Amendment prohibits governments from restricting speech by taxes, license, punishment or withholding of benefits).

The relevant distinction is between outright prohibitions--either criminal or civil-- on the one hand, and...