Remer v. City of El Cajon

• Decision Date: 23 October 1975
• Citation: 52 Cal.App.3d 441,125 Cal.Rptr. 116
• Court: California Court of Appeals Court of Appeals
• Parties: Larry REMER et al., Plaintiffs and Respondents, v. The CITY OF EL CAJON et al., Defendants and Appellants. Civ. 14163.

Page 116

125 Cal.Rptr. 116

52 Cal.App.3d 441

Larry REMER et al., Plaintiffs and Respondents, v. The CITY OF EL CAJON et al., Defendants and Appellants.

Civ. 14163.

Court of Appeal, Fourth District, Division 1, California.

Oct. 23, 1975.

Lynn R. McDougal and Stephen M. Eckis, El Cajon, for defendants and appellants.

William F. Gavin, San Diego, for plaintiffs and respondents.

Gray, Cary, Ames & Frye by Richard A. Burt and Jay D. Hanson, San Diego, for amici curiae.

GERALD BROWN, Presiding Justice.

The defendants, City of El Cajon, et al, appeal a judgment which declared El Cajon Municipal Code section 25--7 unconstitutional, and permanently enjoined its enforcement.

In August 1973, the El Cajon City Council adopted Ordinance No. 2651 adding section 25--7 to the Municipal Code. Plaintiffs Larry Remer, Doug Porter, et al published a newspaper, 'The Door to Liberation,' which they distributed predominantly through coin-operated vending machines placed on public sidewalks in El Cajon. Enforcement of the ordinance had a seriously adverse effect on circulation of 'The Door to Liberation.'

Section 25--7 reads:

'Sale of newspapers, Magazines, etc.

'Nothing contained in this article shall prohibit the sale or offering for sale, or the possession or custody of newspapers, magazines, periodicals or other printed matter commonly sold by news vendors occurring upon the sidewalk and not in or upon that portion of a street, highway or roadway used for vehicular traffic. However, notwithstanding anything to the contrary herein, it shall be unlawful for any person to place or maintain within, in, on, upon, or over any public parkway or sidewalk, any stand, rack, holder, vending machine, self-service stand, coin operated box, storage unit, or other device for the purpose of offering for sale, vending, distributing, or giving away, newspapers, periodicals, or other printed matter, or to authorize, cause or permit any such placement or maintenance.'

The City of El Cajon contends the ordinance is valid as an attempt to improve safety and aeshetics, and to avoid discrimination favoring distribution of newspapers over other merchandise.

We recognize the City's limited right under its police power to regulate potentially injurious methods of communication. However, such restrictions must be reasonable and necessary (Wollam v. City of Palm Springs, 59 Cal.2d 276, 284, 29 Cal.Rptr. 1, 379 P.2d 481). The cure of slight inconveniences or annoyances will not justify the regulation (Cox v. Louisiana, 379 U.S. 559, 564, 85 S.Ct. 476, 481, 13 L.Ed.2d 487, 492; Simpson v. Municipal Court, 14 Cal.App.3d 591, 596, 92 Cal.Rptr. 417).

Newspaper vending boxes along public streets and sidewalks are a constitutionally protected means of distribution (Philadelphia News., Inc. v. Borough C., etc., Swarthmore, D.C., 381 F.Supp. 228, 241). These machines are commonly and effectively used to distribute newspapers, and may be crucial to the survival of 'The Door to Liberation' and other publications. Freedom of the press necessarily includes a right to disseminate the products of that freedom in any rational manner. Liberty to circulate is as essential to free expression as liberty to publish (Lovell v. City of Griffin, La., 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949, 954).

The challenged ordinance unconditionally bans newsracks from public sidewalks, a place traditionally used for the exercise of First Amendment rights (Hague v. Committee for Industrial Organization, 307 U.S. 496, 515--516, 59 S.Ct. 954, 964, 83 L.Ed. 1423, 1436) and to which access cannot be denied broadly or absolutely (Simpson v. Municipal Court, supra, 14 Cal.App.3d 501, 595, 92 Cal.Rptr. 417; Young v. Municipal Court, 16 Cal.App.3d 766, 768--769, 94 Cal.Rptr. 331). Because it so restricts the distribution of printed matter, the ...