Sussli v. City of San Mateo

• Decision Date: 14 May 1981
• Citation: 173 Cal.Rptr. 781,120 Cal.App.3d 1
• Parties: Eugene SUSSLI, Plaintiff and Appellant, v. CITY OF SAN MATEO, a municipal corporation, et al., Defendants and Respondents. Civ. 46085.
• Court: California Court of Appeals Court of Appeals

Page 781

173 Cal.Rptr. 781

120 Cal.App.3d 1

Eugene SUSSLI, Plaintiff and Appellant, v. CITY OF SAN MATEO, a municipal corporation, et al., Defendants and Respondents.

Civ. 46085.

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

May 14, 1981.

As Corrected June 9, 1981.

Rehearing Denied June 12, 1981.

Hearing Denied July 8, 1981.

Pettit & Martin, Neil H. O'Donnell, San Francisco, for plaintiff and appellant.

Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, San Francisco, for American Civil Liberties Union.

Maurice K. Hamilton, City Atty., Lyle L. Lopus, Asst. City Atty., San Mateo, for defendants and respondents.

John M. Powers, City Atty., Vallejo, amicus curiae for City of Vallejo.

William R. Galstan, City Atty., Antioch, amicus curiae for City of Antioch.

NEWSOM, Associate Justice.

Appellant Eugene Sussli was a candidate for the San Mateo City Council in an election held on March 8, 1977. Prior to the election, campaign signs supporting the candidacy of appellant and the re-election of another candidate, John Condon, were posted on public property within the city. On February 8, 1977, the city attorney sent a letter to all candidates, including Sussli, informing them that sign posting on public property was prohibited by local ordinance No. 25.04.090, reproduced verbatim in the margin, ¹ and requesting that all such campaign signs be removed no later than the following week under threat of summary removal by city officials. The letter also advised that under applicable ordinance provisions, sign posting on private property was permissible with the consent of the owner of the property. A copy of the ordinance regulating the time, manner and placement of an "election sign" was included with the written notification. ²

When the candidates refused to comply with the written request, city personnel undertook removal of the offending signs, resulting in the institution of suit for injunctive and declaratory relief. At the conclusion of the hearing the trial court made its decision upholding the ordinance prohibiting the posting of campaign signs on all public property with its attendant sanction of summary removal. Following the adoption of written findings and conclusions and entry of formal judgment, candidate Sussli instituted this appeal. ³

The principal theory of the complaint is that the challenged ordinance constitutes an impermissible abridgement of the right of free speech guaranteed under the provisions of the federal and state constitutions. ⁴ Respondents denied the charging allegations and affirmatively alleged that the ordinance was justified on the grounds of overriding governmental interests. ⁵

On appeal, while conceding that the right to erect or post signs on public property is subject to reasonable regulations for legitimate governmental purposes, Sussli asserts that the absolute ban imposed by the ordinance of a protected First Amendment interest is constitutionally defective on its face. Moreover, he argues, the governmental interests advanced cannot justify what amounts to an overbroad restriction on the right of free speech.

Respondents counter that the uniform imposition of the prohibition against sign posting on any public property does not represent an unlawful intrusion into traditional forums for protectible First Amendment activities. Alternatively, with heavy reliance placed upon the relevant criteria announced in Baldwin v. Redwood City (9 Cir. 1976) 540 F.2d 1360, they argue that the governmental interests promoted by the ordinance as found below justify any incidental restriction imposed on the exercise of First Amendment rights.

The precise question presented characterized by the parties as whether a city may totally prohibit the posting of political signs on public property within the city is apparently one of first impression. ⁶ The significance of that central issue is underscored in Amici's brief on behalf of 48 California cities who had ordinances similar to the ordinance under review.

Sussli's initial attack on the facial validity of the ordinance focuses upon the mode of expression as a form of protected speech which cannot be entirely banned from a traditional forum for the exercise of First Amendment rights. Thus, the argument continues, once First Amendment protection is extended to the means of communication such as sign posting, any legislative attempt to ban outright such protected medium of speech from the public forum is unconstitutional per se.

In fact the courts have repeatedly recognized that virtually all modes of communication used to disseminate ideas and protected expression on the public streets fall within the protective umbrella of the First Amendment. (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 301-302, 138 Cal.Rptr. 53, 562 P.2d 1302 (news racks); Police Departments of Chicago v. Mosley (1972) 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (picketing); Schneider v. State (1939) 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (leafletting); Welton v. City of Los Angeles (1976) 18 Cal.3d 497, 134 Cal.Rptr. 668, 556 P.2d 1119 (roadside map sales); Dulaney v. Municipal Court, supra, 11 Cal.3d 77, 112 Cal.Rptr. 777, 520 P.2d 1 (sign posting on public utility poles); Dillon v. Municipal Court (1971) 4 Cal.3d 860, 94 Cal.Rptr. 777, 484 P.2d 945 (demonstrations and parades); Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 29 Cal.Rptr. 1, 379 P.2d 481 (sound trucks); Remer v. City of El Cajon (1975) 52 Cal.App.3d 441, 125 Cal.Rptr. 116 (newspaper vending boxes); California Newspaper Publishers Assn., Inc. v. City of Burbank (1975) 51 Cal.App.3d 50, 123 Cal.Rptr. 880 (newspaper racks).)

In deciding First Amendment claims in the context of regulatory statutes, however, the primary inquiry is not so much whether a particular mode of communication is protected since "(t)he right of free speech necessarily embodies the means used for its dissemination ...." Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 284, 29 Cal.Rptr. 1, 379 P.2d 481) but whether the statute or ordinance, though content-neutral, nevertheless unduly restricts First Amendment rights. (Baldwin v. Redwood City, supra, 540 F.2d 1360, 1370, fn. 28; Dulaney v. Municipal Court, supra, 11 Cal.3d at pp. 84-85, 112 Cal.Rptr. 777, 520 P.2d 1; Dillon v. Municipal Court, supra, 4 Cal.3d 860, 869, 94 Cal.Rptr. 777, 484 P.2d 945; Tribe, American Constitutional Law (1978) § 12.2, pp. 581-582 (hereafter Tribe).) Constitutional analysis in First Amendment areas has consistently followed a balancing rather than a classifying approach (Baldwin v. Redwood City, supra, 540 F.2d 1360, 1365), discounting any artificial distinction as to whether the restrictive legislation is termed regulatory or prohibitory. (Goldblatt v. Hempstead (1962) 369 U.S. 590, 592, 82 S.Ct. 987, 989, 8 L.Ed.2d 130; Baldwin v. Redwood City, supra, at p. 1370, fn. 28; Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 863, 164 Cal.Rptr. 510, 610 P.2d 407, prob. jur. noted, --- U.S. ----, 101 S.Ct. 265, 66 L.Ed.2d 127.) Viewing the matter from that perspective, courts have repeatedly upheld the exercise of the police power to prohibit the means or mode of communication in order to vindicate sufficiently important governmental interests, even though the prohibition impinges upon First Amendment freedoms. (See United States v. O'Brien (1968) 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672; Metromedia, Inc. v. City of San Diego, supra, 26 Cal.3d at pp. 866-867, 164 Cal.Rptr. 510, 610 P.2d 407; see also Tribe, op. cit. supra, at p. 599.) The principles distilled from the relevant decisions discussing this balancing approach have been well stated in the form of a general rule in Baldwin v. Redwood City, supra (involving local regulations governing political sign posting on private property) as follows: "Incidental restrictions upon the exercise of the First Amendment rights may be imposed in furtherance of a legitimate governmental interest if that interest is unrelated to suppression of expression and is substantial in relation to the restrictions imposed, and if the restrictions are no greater than necessary or essential to the protection of the governmental interests." (Id., at p. 1365.) ⁷

Thus, while section 25.04.090 establishes a blanket prohibition neutrally directed against all inanimate modes of expression on public property (within a regulatory scheme permitting placement of temporary election signs on private property (§ 25.12.130)), the test to be applied in determining whether it survives a constitutional challenge necessarily requires a balancing of competing interests. (Schneider v. State, supra, 308 U.S. at p. 161, 60 S.Ct. at pp. 150-151; Dulaney v. Municipal Court, supra, 11 Cal.3d at pp. 84-85, 112 Cal.Rptr. 777, 520 P.2d 1.)

In applying the correct constitutional standard, the trial court found that the content-neutral ordinance fostered significant governmental interests, which included traffic safety and aesthetic considerations, interests wholly unrelated to suppression of expression and rationally connected to the restrictions imposed. ⁸ (Cf. United States v. O'Brien, supra, 391 U.S. at p. 377, 88 S.Ct. at p. 1679; Metromedia, Inc. v. City of San Diego, supra, 26 Cal.3d 848, 858, 871, 164 Cal.Rptr. 510, 610 P.2d 407.)

It is equally clear that the First Amendment interests involved in the display of political posters adjacent to public thoroughfares are substantial in nature. (Baldwin v. Redwood City, supra, 540 F.2d 1360, 1368.) As one distinguished commentator in the field of constitutional law has observed "Two variables have been important in structuring the balancing process, and in deciding how heavy a burden of justification and how large a sacrifice of other goals to impose on government. The first has been the degree to which any given inhibition on communicative activity falls unevenly upon various groups in the society.... (P) The...