Project 80's, Inc. v. City of Pocatello, 86-4348

• Decision Date: 15 September 1988
• Docket Number: No. 86-4348,86-4348
• Citation: 857 F.2d 592
• Parties: PROJECT 80'S, INC. and David John Fitzen, Plaintiffs-Appellants, v. CITY OF POCATELLO and The City of Idaho Falls, Idaho, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 592

857 F.2d 592

57 USLW 2198

PROJECT 80'S, INC. and David John Fitzen, Plaintiffs-Appellants, v. CITY OF POCATELLO and The City of Idaho Falls, Idaho,

Defendants-Appellees.

No. 86-4348.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 4, 1987.

Decided Sept. 15, 1988.

F. Michael Burkett, Boise, Idaho, for plaintiffs/appellants.

Nancy A. Ferris, Pocatello, Idaho, for defendant/appellee City of Pocatello and Joseph C. Burgess, Idaho Falls, Idaho, for defendant/appellee City of Idaho Falls.

Appeal from the United States District Court for the District of Idaho.

Before CANBY, REINHARDT and BEEZER, Circuit Judges.

CANBY, Circuit Judge:

This action challenges the constitutionality of two ordinances that ban uninvited residential door-to-door solicitation. The district court concluded that the ordinances did not violate appellants' First Amendment right of commercial speech, and it accordingly granted summary judgment for the defendants. We reverse.

FACTS

The two ordinances are almost identical. The Idaho Falls ordinance provides:

UNINVITED PEDDLERS PROHIBITED: The practice of going in and upon private residences in the Municipality by solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise, not having been requested or invited to do so by the owner or occupant of said private premises, for the purpose of soliciting orders for the sale of goods Idaho Falls City Code Sec. 5-4-1. The Pocatello ordinance ¹ is to the same effect, except that it contains a proviso that "persons who solicit donations for charitable or nonprofit organizations shall not be deemed to be in violation" of the ordinance.

wares and merchandise and/or disposing of and/or peddling or hawking the same is hereby prohibited and punishable under the provisions of this Code.

Plaintiffs are Project 80's, Inc., and David Fitzen. ² Project 80's is an Idaho corporation providing work programs for teen-age youths. David Fitzen, who began working for Project 80's as a teen-ager, now coordinates solicitation and sales in an area that includes Pocatello and Idaho Falls. His sales force, all under the age of eighteen, sell various confectionaries door-to-door. They normally sell between the hours of 4:00 and 8:30 p.m. on weekdays and all day on Saturdays. In 1984, Project 80's sought licenses from both Pocatello and Idaho Falls to conduct door-to-door sales. The licenses were denied. Project 80's nevertheless sent its staff into both cities and conducted door-to-door sales. On February 4, 1986, the Pocatello Police Department issued citations against two minors employed by Project 80's for violation of the Pocatello anti-solicitation ordinance. The Pocatello police also cited Fitzen for encouraging the delinquency of a minor. In March 1986, the Idaho Falls Police Department, responding to a complaint, cited Fitzen for violation of the Idaho Falls ordinance.

Project 80's subsequently brought this action challenging the constitutionality of the two ordinances and seeking declaratory and injunctive relief against their enforcement. ³ The district court granted summary judgment for the defendants.

DISCUSSION

Project 80's claim lies rather neatly at the intersection of two developing lines of First Amendment law. One has to do with the evolving standards for protection of commercial speech; the other with the permissible extent of time, place, and manner restrictions on door-to-door solicitation. We will discuss each in turn.

Commercial speech

In Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), the Supreme Court upheld an ordinance against door-to-door solicitation, and observed that a First Amendment challenge to such an ordinance was "not open to the solicitors for gadgets or brushes." Id. at 641, 71 S.Ct. at 932. Breard, however, was decided at a time when commercial advertising was thought to be wholly unprotected by the First Amendment. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942).

Subsequently, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), the Supreme Court held that the First Amendment protected At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

                purely commercial advertisements of prescription drug prices.  The information conveyed by such advertising was viewed as highly important and beneficial to the consumer and to society.   Id. at 763-65, 96 S.Ct. at 1826-27.  Commercial advertising has since been protected in a number of contexts.   E.g., Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977);  Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980);  Shapero v. Kentucky Bar Ass'n, --- U.S. ----, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988).  Despite the value and importance of commercial speech, it was understood from the beginning that it was entitled to a lower degree of First Amendment protection than noncommercial speech.  Commercial speech, for example, could be prohibited if it was misleading or deceptive, see Virginia Board of Pharmacy, 425 U.S. at 771-72, 96 S.Ct. at 1830-31, or if it advertised a transaction or activity that was itself illegal, Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973).  Whether further regulation was permitted was not clear at first, but the Supreme Court later announced a standard in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).  In striking down a state prohibition on the advertising of electric power, the Court adopted a four-part test for regulation of commercial speech
                

447 U.S. at 566, 100 S.Ct. at 2351.

The parties disagree on whether the application of this test must result in the invalidation of the Idaho Falls and Pocatello ordinances. They further disagree on the question whether this Central Hudson standard itself applies with full force to ordinances prohibiting door-to-door solicitation--an area normally governed by a somewhat divergent test for time, place and manner regulation of noncommercial speech. We address these questions in order.

The first issue under the four-prong Central Hudson analysis is whether Project 80's sales activities constitute expression protected by the First Amendment. There is no dispute that the sale of candies and similar items is generally lawful, and there is no claim that Project 80's' sales pitch is misleading or deceptive. Pocatello suggests, however, that the activity of Project 80's in consummating sales door-to-door is primarily conduct, and that the speech element is so subordinated that the First Amendment may not be implicated at all. Pocatello points out that most of the decisions protecting commercial speech, like Virginia Board of Pharmacy, involve advertising, not actual sales. The ordinances in question here do not forbid Project 80's from leaving printed advertisements on the homeowner's doorstep; they merely prohibit in-person solicitation. Pocatello relies upon Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), in which the Supreme Court upheld a prohibition of in-person solicitation of clients by lawyers, stating that "[a] lawyer's procurement of remunerative employment is a subject only marginally affected with First Amendment concerns." Id. at 459, 98 S.Ct. at 1920.

Pocatello's argument goes too far, however, in suggesting that the sales activities of Project 80's do not implicate the First Amendment at all. The decision in Ohralik was primarily based on the potential for overreaching by an attorney who importunes a potential client, not on the fact that solicitation was devoid of information. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 641, 105 S.Ct. 2265, 2276, 85 L.Ed.2d 652 (1985). There can be little question that the door-to-door sales of The next issue under Central Hudson is whether the governmental interest is substantial. Idaho Falls asserts a governmental interest in protecting the privacy and repose of its citizens in their homes. To this Pocatello adds the interests of consumer protection, regulation of commercial transactions, and prevention of crime. "Regulation of commercial transactions" is more of a practice than an interest; we would have to be told the purpose of the regulation to determine whether an important governmental interest was involved. We have little difficulty, however, in accepting privacy, prevention of crime, and consumer protection as substantial state interests. See Frisby v. Schultz, --- U.S. ----, ----, 108 S.Ct. 2495, 2502, 101 L.Ed.2d 420 (1988); Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (1980).

Project 80's involve a considerable degree of commercial communication by the sales force. As the Supreme Court noted in a case involving noncommercial door-to-door fundraising, "solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes...." Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980); see Hynes v. Mayor of Oradell, 425 U.S. 610, 616-18, 96 S.Ct. 1755, 1758-59, 48 L.Ed.2d 243 (1976). We conclude, therefore, that the door-to-door solicitation of Project 80's includes a sufficient element of commercial speech to qualify under...