State v. Bloss

• Decision Date: 17 December 1981
• Docket Number: No. 7440,7440
• Citation: 637 P.2d 1117,64 Haw. 148
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Floyd BLOSS, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 1117

637 P.2d 1117

64 Haw. 148

STATE of Hawaii, Plaintiff-Appellant, v. Floyd BLOSS, Defendant-Appellee.

No. 7440.

Supreme Court of Hawai'i.

Dec. 17, 1981.

Reconsideration Denied Jan. 25, 1982.

As Amended Feb. 8, 1982.

Syllabus by the Court

1. Commercial speech is protected by the First Amendment of the United States Constitution, and Article I, Section 3 of the Hawaii State Constitution.

2. Commercial speech is accorded lesser protection than other forms of speech. The protection afforded commercial speech depends upon the nature of the expression and of the governmental interests served by its regulation.

3. Governmental regulation of protected commercial speech is constitutionally permissible when such speech concerns lawful activity and is not deceptive or misleading; the regulation seeks to implement a substantial governmental interest; the regulation directly advances that interest; and reaches no further than necessary to accomplish the given objective.

4. Commercial speech may also be regulated as to time, place and manner if the regulation: 1) is justified without reference to the content of the regulated speech; 2) serves a significant governmental interest; and 3) leaves open ample alternative channels for communication of the information.

5. A statute is void for vagueness if it fails to state with reasonable clarity the act it proscribes and fails to prescribe fixed standards for adjudging guilt when that person stands accused.

6. Where an act purporting to amend and re-enact an existing statute is void, the original statute remains in force.

Glenn M. Miyajima, Deputy Pros. Atty., Honolulu, for plaintiff-appellant.

Evan R. Shirley, Honolulu (Shirley & Jordan, Honolulu, of counsel), for defendant-appellee.

Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

OGATA, Justice.

The State of Hawaii (hereinafter State) appeals an order and a written decision of the First Circuit Court which declared Section 26-6.2(b)(7), Revised Ordinances of Honolulu (hereinafter R.O.H.) as amended, ¹ unconstitutional as being violative of the guarantee of free speech, and being void for vagueness in violation of due process of law. For the reasons set forth below, we affirm in part and reverse in part the decision of the circuit court.

Section 26-6.2, R.O.H., regulates peddling on streets, sidewalks and malls, and in other public places. That ordinance as amended by Ordinance 4302 (italicized material), provides in pertinent part: ²

(b) Notwithstanding any ordinance to the contrary, it shall be unlawful for any person to sell or offer for sale, solicit orders for, or invite attention to or promote in any manner whatsoever, directly or indirectly, goods, wares, merchandise, food stuffs, refreshments or other kinds of property or services, or to distribute commercial handbills, or to carry on or conduct any commercial promotional scheme, advertising program or similar activity in the following areas:

(7) Waikiki peninsula-upon the public streets, alleys, sidewalks, malls, parks, beaches or other public places in Waikiki commencing at the entrance to the Ala Wai Canal to Kapahulu Avenue thence along the diamond head property line of Kapahulu Avenue to the ocean, thence along the ocean back to the entrance of the Ala Wai Canal.

The provisions of this subsection shall not apply to the sale or offer for sale of daily newspapers of general circulation and to duly authorized concessions in public places.

Violation of the ordinance could result in imprisonment for not more than one year, a fine of not more than $1,000 or both. Section 26-6.3, R.O.H.

On February 1, 1979, defendant-appellee, Floyd Bloss (hereinafter appellee), was arrested for violating Section 26-6.2(b)(7), R.O.H. Specifically, appellee had "Gun Club of Hawaii" handbills in pockets affixed to the outer body of a Volkswagen van which was legally parked in a metered stall on Royal Hawaiian Avenue in Waikiki. These handbills advertised in Japanese, appellee's shooting gallery where customers could shoot live .22 caliber firearms at targets. The handbills were available for passersby to remove and dispose of them accordingly.

On February 22, 1979, and March 5, 1979, appellee appeared in the District Court of the First Circuit, and upon his demand for a jury trial, the cause was committed to the First Circuit Court. On March 30, 1979, appellee was arraigned on the amended charge of attempted prohibited peddling. ³

Then on April 5, 1979, appellee filed a motion to declare Section 26-6.2(b) (7), R.O.H., unconstitutional on its face. After a hearing on this motion, on May 10, 1979, the First Circuit Court issued an order and a written decision declaring Section 26-6.2(b)(7), R.O.H., unconstitutional on its face as being violative of the First Amendment guarantee of free speech and of due process of law. ⁴ The trial court found that: appellee could properly challenge the constitutionality of the ordinance; that commercial speech is protected under the First Amendment but can be regulated where other forms of speech could not; that the ordinance was not a constitutionally permissible regulation of commercial speech; and that the ordinance was vague and ambiguous. On May 31, 1979, the State filed a motion for reconsideration which was denied by the circuit court on June 13, 1979. ⁵ The State now appeals.

I.

The State asserts that appellee did not have standing to challenge the constitutional validity of Section 26-6.2(b)(7), R.O.H., relying on cases holding that the overbreadth doctrine ⁶ is inapplicable to commercial speech. Bates v. State Bar of Arizona, 433 U.S. 350, 380-81, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810 (1977); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 462-63 n.20, 98 S.Ct. 1912, 1922 n.20, 56 L.Ed.2d 444 (1978). These cases reason that the overbreadth doctrine does not apply to commercial speech because such speech is not susceptible to being crushed by overbroad regulation. Bates v. State Bar of Arizona, supra.

The trial court found it unnecessary to resort to exceptions to the rules of standing. The trial court based its decision on the specific conduct of appellee under the instant ordinance, not how this ordinance applied to others.

Where restraints imposed act directly on an individual or entity and a claim of specific present objective harm is presented, standing to challenge the constitutionality of an ordinance or statute exists. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Central Hudson Gas v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). We further note that the touchstone to the question of standing remains "the needs of justice." Life of the Land v. Land Use Comm'n, 63 Haw. 166, 623 P.2d 431 (1981).

For example, in Bigelow v. Virginia, supra, the trial court rejected Bigelow's assertion that the statute for which he was convicted was overbroad and unconstitutional as applied to him. The United States Supreme Court held that Bigelow, a newspaper editor, had standing to challenge the constitutionality of the Virginia statute which prohibited him from selling or circulating any publication encouraging or promoting abortions. The court stated:

There must be a "claim of specific present objective harm or a threat of specific future harm." That requirement, however, surely is met under the circumstances of this case, where the threat of prosecution already has blossomed into the reality of a conviction, and where there can be no doubt concerning the appellant's personal stake in the outcome of the controversy. The injury of which appellant complains is one to him as an editor and publisher of a newspaper, he is not seeking to raise the hypothetical rights of others .... The facts of this case well illustrate "the statute's potential for sweeping and improper application." (Citations omitted.)

421 U.S. at 816-17, 95 S.Ct. at 2229-30.

Likewise in Central Hudson Gas v. Public Service Comm'n, supra, the Supreme Court permitted Central Hudson to challenge the constitutionality of restraints placed upon their advertising, which promoted the use of electricity, by the Commission. The court observed: "In this case, the Commission's prohibition acts directly against the promotional activities of Central Hudson, and to the extent the limitations are unnecessary to serve the State's interests, they are invalid." Id. at 565, n.8, 100 S.Ct. at 2351, n.8.

In the instant case, we find that appellee has standing to challenge the constitutionality of the ordinance. Although the ordinance conceivably affects others, the interests of hypothetical third parties are not involved, thus the overbreadth doctrine is inapplicable. It is appellee's rights which were violated by the prohibitions of the ordinance. Appellee has shown a claim of specific present objective harm and a personal stake in the outcome. Thus justice is served and the trial court properly found that appellee had standing.

II.

The State contends that the trial court erred in declaring the instant ordinance violative of the free speech guarantee of the First Amendment of the United States Constitution, and Article I, Section 3 of the Hawaii State Constitution. However, we first must examine whether the instant form of expression is commercial speech. If found to be commercial speech, we then consider whether such speech is entitled to constitutional protection.

A.

A precise definition of what is commercial speech has not been well developed in the case law. See, Comment, "First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine," 44 U.Chi.L.Rev. 205 (1976). Recent cases have attempted to more clearly define the scope and parameters of commercial speech. ⁷ In Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 762, 96 S.Ct. 1817, 1825, 48 L.Ed.2d 346 (1976), the Supreme Court held that commercial speech includes speech which proposes no more than a...