Kash Enterprises, Inc. v. City of Los Angeles

CourtUnited States State Supreme Court (California)
Citation19 Cal.3d 294,138 Cal.Rptr. 53,562 P.2d 1302
Decision Date15 April 1977
Parties, 562 P.2d 1302, 2 Media L. Rep. 1716 KASH ENTERPRISES, INC., Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent. L.A. 30688.

Karl M. Manheim, Long Beach, and Joel F. Franklin, Los Angeles, for plaintiff and appellant.

Burt Pines, City Atty., Ward G. McConnell and Sherman W. Smith, Jr., Deputy City Attys., for defendant and respondent.

TOBRINER, Acting Chief Justice.

In 1972, the City of Los Angeles enacted a municipal ordinance regulating the size, weight, appearance and placement of new racks installed and maintained on the city's sidewalks. 1 Three years later, after a number of its newsracks had been removed from their sidewalk locations pursuant to the provisions of the ordinance, plaintiff Kash Enterprises, Inc. instituted an action for declaratory and injunctive relief, attacking the ordinance as unconstitutional on its face and contending that the ordinance had been discriminatorily enforced against newsracks containing newspapers which Kash had published and distributed. Kash thereafter moved for a preliminary injunction, relying solely on its constitutional challenge to the ordinance's facial validity, and reserving the discriminatory enforcement issue for a subsequent trial. After a hearing, the trial court denied the requested preliminary injunction, and plaintiff now appeals from that order.

Plaintiff contends that the challenged ordinance is unconstitutional on its face in two respects. First, plaintiff asserts that a number of the substantive provisions of the ordinance, limiting the placement and appearance of newsracks, are impermissibly vague and overbroad. Second, plaintiff maintains that the principal enforcement mechanism provided by the ordinance--the summary seizure, retention and destruction of offending newsracks without according a newsrack owner any hearing as to the validity of the seizure--violates both procedural due process and First Amendment principles. As we explain, although we have determined that the substantive provisions of the ordinance--as written or as interpreted in this opinion--are sufficiently definite and narrowly drawn to pass constitutional muster, we conclude that the ordinance's seizure provision is unconstitutional on its face. Accordingly, we conclude that the trial court erred in refusing to grant a preliminary injunction as to that portion of the ordinance authorizing such seizure, retention and destruction of newsracks. 1. The substantive provisions of the challenged ordinance, as interpreted in this opinion, are sufficiently definite and narrowly drawn to constitute reasonable 'time, place and manner' regulations of First Amendment activity, and therefore such provisions are not unconstitutional on their face.

In evaluating the constitutionality of section 42.00, subdivisions (f)(1) to (f)(6) of the Los Angeles Municipal Code, 2 the municipal newsrack regulations at issue here, we must begin by recognizing that the right to distribute newspapers and other periodicals on the public streets lies at the heart of our constitutional guarantees of freedom of speech and freedom of the press. As both the United States Supreme Court and this court have emphasized on numerous occasions: 'Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purpose of assembly, communicating thoughts between citizens, and discussing public questions.' (Hague v. C.i.o. (1939) 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423.)

Moreover, our decisions have repeatedly recognized that First Amendment protection extends not only to traditional street corner, soap-box speeches (see, e.g., Terminiello v. Chicago (1949) 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131), but to virtually all modes of communication that may be utilized to disseminate ideas and protected expression on the public streets. Thus, past cases have found that demonstrations and parades (Dillon v. Municipal Court (1971) 4 Cal.3d 860, 94 Cal.Rptr. 777, 484 P.2d 945), picketing (Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212), leafletting (Schneider v. State (1939) 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155), sound truck broadcasts (Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 29 Cal.Rptr. 1, 379 P.2d 481) and even the posting of signs on public utility poles (Dulaney v. Municipal Court (1974) 11 Cal.3d 77, 112 Cal.Rptr. 777, 520 P.2d 1) fall 'within the protective umbrella of the First Amendment.' (Id., at p. 84, 112 Cal.Rptr. at p. 782, 520 P.2d at p. 6.)

Applying the general constitutional principles underlying the above line of authority, numerous courts--both in California and out-of-state--have in recent years uniformly held that First Amendment protections are applicable to the public distribution of newspapers and periodicals through newsracks and that, as a consequence, municipalities lack constitutional authority to foreclose All use of such newsracks on their streets and sidewalks. (See California Newspaper Publishers Assn., Inc. v. City of Burbank (1975) 51 Cal.App.3d 50, 123 Cal.Rptr. 880; Remer v. City of El Cajon (1975) 52 Cal.App.3d 441, 125 Cal.Rptr. 116; Philadelphia News., Inc. v. Borough C., etc., Swarthmore (E.D.Pa.1974) 381 F.Supp. 228; Gannett Co. v. City of Rochester (1972) 69 Misc.2d 619, 330 N.Y.S.2d 648.) 3 The City of Los Angeles does not challenge the broad holdings of these recent decisions, and we agree with their uniform conclusion that the dissemination of protected material on public streets by means of newsracks falls within the constitutional guarantees of freedom of speech and freedom of the press.

Although the distribution of periodicals through newsracks is thus entitled to constitutional protection, this principle does not ordain, of course, that newsracks are totally immune from regulation by local municipalities. As defendant city notes, every one of the recent decisions invalidating a broad 'anti-newsrack' ordinance has clearly indicated that localities retain authority to impose reasonable 'time, place and manner' regulations on the use of newsracks, so as to protect legitimate state interests while preserving First Amendment rights. In Remer v. City of El Cajon, supra, 52 Cal.App.3d 441, 444, 125 Cal.Rptr. 116, 117, for example, the court, after invalidating an ordinance which barred all newsracks from public streets, stated: 'The city might consider controlling the number, size, construction, placement and appearance of the vending devices in order to achieve its goals without unduly restricting the free dispersal of information.' (See also California Newspaper Publishers Assn., Inc. v. City of Burbank, supra, 51 Cal.App.3d 50, 53--54, 123 Cal.Rptr. 880; Philadelphia News., Inc. v. Borough C., etc., Swarthmore, supra, 381 F.Supp. 228, 244; Gannett Co. v. City of Rochester, supra, 330 N.Y.S.2d 648, 657.) The City of Los Angeles maintains that the ordinance challenged in the present case embodies just such a reasonable 'time, place and manner' regulation of newsracks and thus is constitutional on its face.

Plaintiff, while conceding that defendant city may impose reasonable time, place, and manner regulations on newsracks, maintains that a number of the regulatory provisions of the challenged ordinance are, in effect, constitutionally 'unreasonable.' As plaintiff suggests, time, place and manner regulations of First Amendment activity are constitutionally reasonable only if they are clearly and narrowly drawn to avoid arbitrary and unnecessary curtailment of freedom of speech and freedom of the press. (See, e.g., Grayned v. City of Rockford (1972) 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222; Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 284--285, 29 Cal.Rptr. 1, 379 P.2d 481.) 4 Plaintiff suggests that several portions of the Los Angeles ordinance do not satisfy this rigorous constitutional standard and are either unjustifiably vague or impermissibly overbroad. As we explain, however, with but one minor exception which may be cured by appropriate interpretation, we conclude that the challenged regulations are sufficiently definite and narrowly tailored to survive plaintiff's constitutional challenge.

Plaintiff initially attacks the segment of the ordinance which prohibits the placement of a newsrack in a location that 'unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic' (§ 42.00, subd. (f)(2)), asserting that the use of the term 'unreasonably' renders the clause unduly vague and susceptible to arbitrary application. In Cameron v. Johnson (1968) 390 U.S. 611, 615--616, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182, however, the United States Supreme Court rejected an almost identical vagueness attack on a Mississippi statute which prohibited 'picketing . . . in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any . . . county . . . courthouse.' Justice Brennan, writing for the Cameron court, observed: 'Appellants . . . argue that the statute forbids picketing in terms 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . ..' (Citation.) But . . . (t)he terms 'obstruct' and 'unreasonably interfere' plainly require no 'guess(ing) at (their) meaning.' Appellants focus on the word 'unreasonably.' It is a widely used and well understood word and clearly so when juxtaposed with 'obstruct' and 'interfere.' We conclude that the statute clearly and precisely delineates its reach in words of common understanding.' (Fns. omitted.) This reasoning applies equally to the Los Angeles ordinance.

Plaintiff secondly challenges the portion of the ordinance which precludes the installation or maintenance of a news rack 'when such news rack interferes with the...

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