Houston Chronicle Pub. Co. v. City of Houston

• Decision Date: 05 August 1981
• Docket Number: No. A2658,A2658
• Citation: 620 S.W.2d 833
• Parties: 7 Media L. Rep. 2043 HOUSTON CHRONICLE PUBLISHING COMPANY, Appellant, v. CITY OF HOUSTON, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 833

620 S.W.2d 833

7 Media L. Rep. 2043

HOUSTON CHRONICLE PUBLISHING COMPANY, Appellant, v. CITY OF HOUSTON, et al., Appellees.

No. A2658.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Aug. 5, 1981.

Rehearing Denied Sept. 10, 1981.

William W. Ogden, Liddell, Sapp, Zivley, Brown & LeBoon, Houston, for appellant.

Edward A. Cazares, City Atty., W. Torrance Fiddes, Asst. City Atty., Houston, for appellees.

Before J. CURTISS BROWN, C. J., and JUNELL and MURPHY, JJ.

J. CURTISS BROWN, Chief Justice.

This is an appeal from a trial court judgment upholding the constitutionality of a city ordinance banning sales of newspapers to occupants of motor vehicles while such vehicles are on public streets or public property.

The Houston Chronicle Publishing Company ("the Chronicle" or "appellant") publishes and distributes a daily newspaper of general circulation, known as the Houston Chronicle. Prior to July 14, 1976, one of appellant's customary methods of distribution was to "sell" its newspapers to enterprising street vendors, called "hawkers," who were primarily children. The hawkers would take to the streets and sidewalks of Houston and offer the papers for sale to pedestrians and occupants of motor vehicles in their vicinity. During any given business day approximately 1700 occupants of motor vehicles purchased newspapers distributed in this fashion. In response to increasing numbers of complaints from the public relating to the effect of "streetcorner" sales on traffic flow and safety, the City of Houston ("the city" or "appellee") passed a regulatory ordinance affecting such sales. On July 14, 1976, the ordinance (Ordinance Number 76-1190, § 1 also known as Section 41-10.3 of the Code of Ordinances of the City of Houston) became effective, as follows:

Sec. 41-10.3. Sale of newspapers on public property.

A person may sell and/or install any nonelectrical apparatuses for the sale of daily or weekly newspapers on sidewalks, or other public property or property dedicated to the public use provided, however, it shall be unlawful for any person to sell or offer for sale any newspaper to any occupant of any vehicle which is in a street or on other public property, whether or not such vehicle is moving, stopped or parked and whether or not the person selling or offering for sale such newspaper is, or is not, on a public street or on public property and providing further, it shall be unlawful for any person selling or offering for sale any newspaper to impede the free passage of persons on sidewalks or other public property or to install any apparatus used for sale of newspapers where such apparatus will impede or interfere with the free passage of persons on sidewalks or other public property.

It shall be unlawful for any person to cause or aid a minor in conduct prohibited by this section or to provide newspapers to a minor with knowledge that the minor intends to sell or offer for sale such newspapers in contravention of this section. (Ordinance No. 76-1190, § 1, effective July 14, 1976).

Sec. 1-7. General penalty; continuing violations.

Whenever in this Code or in any ordinance of the city an act is prohibited or is made or declared to be unlawful or an offense or a misdemeanor ... and no specific penalty is provided therefor, the violation of any such provision of this Code or any such ordinance shall be punished by a fine of not exceeding two hundred dollars ($200.00).... Each day any violation of this Code or of any ordinance shall continue shall constitute a separate offense. (Code 1958, § 1-6).

After July 14, 1976, appellant ceased the practice of distributing newspapers through street vendors and filed suit against the city and then-mayor Fred Hofheinz seeking a declaratory judgment of the constitutionality of Section 41-10.3 and a permanent injunction against enforcement of the ordinance by city officials. The trial court found the ordinance constitutional.

We disagree and hold that the ordinance in question is overbroad on its face and abridges the right to free speech and free press secured by the due process clause of the Fourteenth Amendment to the United States Constitution (and by Article 1, Section 8 of the state constitution) and the right to equal protection of the laws secured by the Fourteenth Amendment (and by Article 1, Section 3 of the state constitution). The City defends the ordinance on the grounds that (1) the ordinance is valid because it does not regulate the content of speech, but instead regulates a business or trade; (2) the ordinance is a valid exercise of the municipality's police power, rationally aimed at facilitating traffic flow and protecting the young hawkers from bodily harm and (3) the ordinance reasonably regulates the time, place and manner of newspaper sales and does not make the paper unavailable to the public.

The city correctly asserts that commercial speech is afforded a lesser degree of protection under the First and Fourteenth Amendments than is noncommercial speech. Metromedia, Inc. v. City of San Diego, --- U.S. ----, 101 S.Ct. 2882, 69 L.Ed.2d ---- (1981). Commercial speech is that speech through which the speaker proposes no more than a commercial transaction. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Newspapers are sold for profit and they contain commercial speech (in the form of advertisements), but all of the speech contained therein is not so limited in purpose.

Publication and dissemination of information and opinion are protected by the First and Fourteenth Amendments even when conducted under commercial auspices, such as offering newspapers, magazines and other journals for sale. New York Times Co. v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964); Smith v. State of California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959); Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936). Furthermore, free press protections extend to the means of distribution of information, as well as the content and ideas. Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938). Access to public streets has long been regarded as an essential element of freedoms of speech and of the press. Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972); Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Cf. Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex.Civ.App. Houston (14th Dist.) 1975), writ ref'd n.r.e. per curiam 536 S.W.2d 559 (Tex.1976). Right of access includes the related right to distribute printed material. Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653; Philadelphia Newspapers, Inc. v. Borough Council, Borough of Swarthmore, 381 F.Supp. 228 (E.D.Penn.1974). It is irrelevant that the Chronicle is distributed by a profit-oriented commercial concern and that the impact of the ban on total sales of the Chronicle is minimal.

Traffic control and safety are substantial governmental goals, legitimate interests of a municipality and rational bases for the exercise of police power. Metromedia, Inc. v. City of San Diego, --- U.S. ----, ----, 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800; Heffron v. International Society for Krishna Consciousness, Inc., --- U.S. ----, 101 S.Ct. 2559, 69 L.Ed. 298 (1981); Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). This fact alone does not justify an attempted regulation of fundamental freedoms of expression. In assessing the constitutionality of attempted regulations of the right of access to the public streets, the court must balance the diverse legitimate interests of the municipality under its police power against the preferred status of First and Fourteenth Amendment rights. Metromedia, Inc. v. City of San Diego, --- U.S. ----, ----, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800; Saia v. State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155. A total ban of a particular medium of expression must be closely scrutinized to assess the substantiality of the governmental interests asserted and to determine if the intended objectives of the enactment could be fulfilled by a more narrowly-drawn provision, less restrictive of such preferred rights. Schad v. Borough of Mount Ephraim, --- U.S. ----, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Reasonable restrictions on the time, place and manner of the exercise of First and Fourteenth Amendment rights will be upheld if they are justified without reference to the content of the regulated speech and are narrowly drawn, limiting the restrictions to those necessary to protect significant governmental interests. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Iranian Muslim Organization v. City of San Antonio, 615 S.W.2d 202, 205-206 (Tex.1981). Once a governmental regulation is shown to impinge on First and Fourteenth Amendment rights, the burden falls on the government to show the validity of its asserted interest and the absence of less intrusive alternatives. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Heffron v. International Society for Krishna Consciousness, Inc., --- U.S. ----, ----, 101 S.Ct. 2559, 2569, 69 L.Ed.2d 298 (J. Brennan, concurring in part and dissenting in part).

The city argues that the ordinance reasonably regulates only a certain manner of expression (sales of newspapers to motor vehicle occupants) in a...