City of Hillsboro v. Purcell
Decision Date | 11 December 1987 |
Citation | 743 P.2d 1119,87 Or.App. 649 |
Parties | CITY OF HILLSBORO, Respondent, v. David L. PURCELL, Appellant. CITY OF HILLSBORO, Respondent, v. Pete N. DOMINICI, Appellant. 85-0424, 85-0425; CA A41670 (Control), A41671. |
Court | Oregon Court of Appeals |
Todd A. Bradley, Portland, argued the cause and filed the brief for respondent.
Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.
Defendants are door-to-door salesmen. They appeal 1 their convictions for violating an ordinance of the city of Hillsboro, which prohibits "calling at residences" to make sales or for certain other commercial purposes. In legal literature it has been known as a "Green River Ordinance." Defendants argue that the ordinance violates the federal and state constitutions in a number of respects. We agree with their contention that the ordinance violates their rights of expression under Article I, section 8, of the Oregon Constitution. 2 On that basis, we reverse the convictions and need not address their other arguments.
Section 1 of Hillsboro ordinance no. 2488-2-72 provides:
The city argues at the outset that most of defendants' arguments, including their federal and state constitutional free speech arguments, must be decided adversely to them, because Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), and Phillips v. City of Bend, 192 Or. 143, 234 P.2d 572 (1951), are contrary to the arguments and are controlling. Both decisions upheld ordinances comparable to the one in question against federal free speech and other constitutional challenges.
We do not agree that either case is controlling in connection with the Article I, section 8, issue. Phillips was decided shortly after Breard v. Alexandria, supra. It did not even refer to Article I, section 8. Its free speech analysis consists almost entirely of an extensive discussion of and extensive quotations from the First Amendment analysis in Breard. After discussing Breard, the court cryptically concluded in Phillips:
The word of the highest court in the land is not controlling law with respect to Article I, section 8. Because Phillips did not address the state law issue, and because Breard obviously did not and could not, neither is dispositive.
In Schaumburg v. Citizens for Better Environ., 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), the United States Supreme Court reiterated that, although they are subject to reasonable regulation, charitable, political and other noncommercial "solicitations in residential neighborhoods are within the protections of the First Amendment." 444 U.S. at 633, 100 S.Ct. at 834. In reaching that conclusion, the Court distinguished Breard:
444 U.S. at 631, 100 S.Ct. at 833.
See also Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943).
Consequently, as the Supreme Court views the First Amendment, its application to noncommercial door-to-door solicitations differs from its application to commercial...
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City of Hillsboro v. Purcell
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