People v. Fogelson

• Decision Date: 26 April 1978
• Docket Number: Cr. 19823
• Citation: 145 Cal.Rptr. 542,577 P.2d 677,21 Cal.3d 158
• Court: California Supreme Court
• Parties: , 577 P.2d 677 The PEOPLE, Plaintiff and Respondent, v. Henry M. FOGELSON, Defendant and Appellant.

Page 542

145 Cal.Rptr. 542

21 Cal.3d 158, 577 P.2d 677

The PEOPLE, Plaintiff and Respondent, v. Henry M. FOGELSON, Defendant and Appellant.

Cr. 19823.

Supreme Court of California.

April 26, 1978.

Fleishman, Brown, Weston & Rohde, Stanley Fleishman and Barry A. Fisher, Beverly Hills, for defendant and appellant.

Burt Pines, City Atty., George C. Eskin, Chief Asst. City Atty., and Ward G. McConnell, Asst. City Atty., for plaintiff and respondent.

BIRD, Chief Justice.

Appellant, Henry M. Fogelson, was convicted by the court of a misdemeanor, soliciting contributions on public property without a permit, conduct which violated a Los Angeles ordinance. ¹ The issue presented to this court is whether this ordinance imposes an impermissible restriction upon free speech and the free exercise of religion, as guaranteed by the First and Fourteenth Amendments to the United States Constitution and by article I, sections 2 and 4 of the California Constitution. This court concludes that the ordinance is invalid on its face because it gives administrative officials unlimited discretion to grant or deny permission to engage in constitutionally protected forms of solicitation.

I

The facts are not in dispute. Appellant belongs to the Hare Krishna faith, the tenets of which require its adherents to go to public places to distribute books and pamphlets containing the teachings of the faith. Persons, who accept this literature, are asked to make financial contributions to defray the expenses of publishing such materials and of carrying on other Hare Krishna activities.

A Los Angeles policeman testified that on July 10, 1974, he was on duty at the Los Angeles International Airport, a facility owned and operated by the City of Los Angeles. He was informed that a Hare Krishna adherent was soliciting in the main lobby of the Trans World Airlines terminal. Upon arriving at that terminal, he saw appellant, in traditional Hare Krishna dress, offering books to persons passing through the area. The officer warned appellant that he could not lawfully solicit without a permit and advised him that he could try to obtain one in the tower building of the airport. ² After appellant replied that he did not need a permit because he was practicing his religion, the police officer stated that he was going to follow appellant and listen to what he said. A short time later, appellant approached a bystander and handed him a Hare Krishna book. According to that bystander's testimony, appellant told him he "could have (the book), but (he) would have to give sort of a contribution, something about meals for the needy or something like that." The police officer then arrested appellant and seized the Hare Krishna literature in his possession.

Following appellant's conviction in the municipal court of violating the Los Angeles solicitation ordinance (see fn. 1, ante ), the appellate department of the superior court reversed. Thereafter, the court of appeal transferred the case to itself on its own motion (Cal.Rules of Court, rule 62(a)) and affirmed the conviction. This court granted appellant's petition for hearing. (Cal.Rules of Court, rule 28(a).)

II

Appellant's principal contention is that the Los Angeles solicitation ordinance is facially invalid because it fails to provide any standards for granting or refusing permission to engage in solicitation, many forms of which are constitutionally protected conduct. In response, the city attorney argues that appellant's own act of soliciting contributions was not protected conduct and, therefore, he may not challenge the facial validity of the ordinance. ³

This court need not determine whether appellant was engaged in constitutionally protected activity in order to entertain his contention that the ordinance is invalid on its face. It is generally true that an individual charged with violating a law or regulation may attack the constitutionality of that law or regulation only as it applies to the facts of his or her case. However, when the law or regulation is challenged on its face as substantially encroaching upon First Amendment protected activity, a court may consider the measure as it applies to others. (See, e. g., Gooding v. Wilson (1972) 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408; Bigelow v. Virginia (1975) 421 U.S. 809, 815, 95 S.Ct. 2222, 2229, 44 L.Ed.2d 600 ("This Court often has recognized that a defendant's standing to challenge a statute on First Amendment grounds as facially overbroad does not depend upon whether his own activity is shown to be constitutionally privileged."); Broadrick v. Oklahoma (1973) 413 U.S. 601, 611-613, 93 S.Ct. 2908, 37 L.Ed.2d 830; Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 338-339, 38 Cal.Rptr. 625, 392 P.2d 385; Canon v. Justice Court (1964) 61 Cal.2d 446, 450, 39 Cal.Rptr. 228, 393 P.2d 428; see also Burton v. Municipal Court, supra, 68 Cal.2d at pp. 688, 68 Cal.Rptr. 721, 441 P.2d 281 ("It is settled that a person has the standing to challenge a statute on the ground that it delegates overly broad licensing authority to an administrative officer whether or not his conduct could be proscribed by a properly drawn enactment . . . ."), 696-697, 68 Cal.Rptr. 723, 441 P.2d 283.)

Such review is permitted in these circumstances because case-by-case adjudication may not fully vindicate the constitutional rights at stake. The actual application of an overbroad ordinance is not its only vice; it may also have a substantial deterrent impact or "chilling effect" on the exercise of constitutional rights. Faced with a regulation that threatens to impose sanctions upon free speech or the free exercise of religion, significant numbers of persons may elect not to exercise those rights rather than undergo the rigors of litigation and the risk of eventual punishment. While it is crucial that persons not be punished for having exercised their rights of free speech and religion, ⁴ it is equally important that they not be deterred from such conduct. In this regard the United States Supreme Court has stated: "Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression of transcendent value to all society, and not merely to those exercising their rights might be the loser. (Citation.) For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. (Citations.) We have fashioned this exception to the usual rules governing standing . . . because of the ' . . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.' NAACP v. Button ((1963) 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405). If the rule were otherwise, the contours of regulation would have to be hammered out case by case ⁵ and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation. (Citation.) By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation." (Dombrowski v. Pfister (1965) 380 U.S. 479, 486-487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22.)

There can be little question that the ordinance challenged here lends itself to a substantial number of unconstitutional applications. ⁶ This ordinance purports to regulate a very broad range of solicitation activities including the acts of seeking, begging or soliciting custom, patronage, sales, alms or donations "in any manner or for any purpose." Many forms of solicitation are constitutionally protected. These include solicitation of religious contributions (e. g., Cantwell v. Connecticut (1940) 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213); solicitation of political contributions (e. g., Hynes v. Mayor of Oradell (1976) 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243); solicitation of union memberships (e. g., In re Porterfield (1946) 28 Cal.2d 91, 168 P.2d 706); and solicitation of sales of protected literature (e. g., Lovell v. Griffin (1938)303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949). ⁷ All of these areas fall within the plain language of the Los Angeles ordinance. Thus, it is evident that the ordinance reaches substantial areas of protected speech and religious activity.

The mere fact that the challenged ordinance attempts to regulate constitutionally protected speech and religious activity does not, of course, render it unconstitutional. Speech and religious exercise are not wholly exempt from controls. (Cantwell v. Connecticut, supra, 310 U.S. at pp. 303-304, 60 S.Ct. 900). The state may, for example, reasonably regulate the time, place and manner of engaging in solicitation in public places. (Id., at p. 304, 60 S.Ct. 900; see also Cox v. New Hampshire (1941) 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049.) The state may also reasonably and narrowly regulate solicitations in order to prevent fraud (see, e. g., Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232, 163 P.2d 704) or to prevent undue harassment of passersby or interference with the business operations being conducted on the property (see, e. g., In re Hoffman (1967) 67 Cal.2d 845, 851-852, 64 Cal.Rptr. 97, 434 P.2d 353). ⁸ However, in the area of First Amendment freedoms, including constitutionally protected forms of solicitation, the touchstone of regulation must be precision narrowly drawn standards closely related to permissible state interests. (See, e. g., Welton v. City of Los Angeles, supra, 18 Cal.3d at p. 504, 134 Cal.Rptr. 668, 556 P.2d 1119; Van Nuys Pub. Co. v. City of Thousand Oaks (1971) 5 Cal.3d 817, 820-821, ...