Van Nuys Pub. Co. v. City of Thousand Oaks

• Decision Date: 18 October 1971
• Citation: 5 Cal.3d 817,97 Cal.Rptr. 777,489 P.2d 809
• Parties: , 489 P.2d 809, 3 ERC 1178 VAN NUYS PUBLISHING COMPANY, Inc., Plaintiff and Appellant, v. CITY OF THOUSAND OAKS, Defendant and Respondent. L.A. 29866. In Bank
• Court: California Supreme Court

Page 777

97 Cal.Rptr. 777

5 Cal.3d 817, 489 P.2d 809, 3 ERC 1178

VAN NUYS PUBLISHING COMPANY, Inc., Plaintiff and Appellant, v. CITY OF THOUSAND OAKS, Defendant and Respondent.

L.A. 29866.

Supreme Court of California,

In Bank.

Oct. 18, 1971.

Rehearing Denied Nov. 17, 1971.

Willard R. Pool, Garden Grove, for plaintiff and appellant.

Kaplan Livingston Goodwin, Berkowitz & Selvin and Herman F. Selvin, Beverly Hills, amici curiae on behalf of plaintiff and appellant.

Hathaway, Clabaugh & Perrett and E. E. Clabaugh, Jr., Ventura, for defendant and respondent.

Ronald H. Bevins, Buena Park, and Holden & Bevins, Fullerton, amici curiae on behalf of defendant and respondent.

TOBRINER, Associate Justice.

Plaintiff Van Nuys Publishing Company instituted this action to enjoin defendant City of Thousand Oaks from enforcing a newly enacted 'anti-littering' ordinance on the ground that the provision, on its face and as applied, constituted an unconstitutional abridgement of First Amendment rights. After initially issuing a preliminary injunction as requested by plaintiff the trial court rendered judgment in favor of the city, upholding the constitutionality of the challenged ordinance. The publisher appeals from that decision.

For the reasons discussed more fully below, we have concluded that the city's present, broadly phrased, anti-littering ordinance cannot be squared with established First Amendment precepts. Instead of drafting a narrow measure aimed specifically at those who litter or those who handle written materials irresponsibly so as to cause litter, the City of Thousand Oaks has, by the instant enactment, undertaken an extensive interference with the distribution and circulation of all types of written material; as such, the challenged provision unquestionably exhibits the familiar unconstitutional vice of 'overbreadth,' proscribing constitutionally protected activity along with 'littering.' The past 30 years of First Amendment adjudication, in both the United States Supreme Court and in this court, teach that this ordinance, by broadly curtailing a predominant means of direct person-to-person and house-to-house distribution of written material, instead of fashioning its proscription precisely to the problem of littering, cannot withstand constitutional scrutiny.

Section 4 of city ordinance No. 98, the section attacked on this appeal, ¹ provides in full: 'No person may throw, cast, distribute, scatter, deposit, pass out, give away, circulate or deliver any handbill, dodger, circular, newspapers, paper, booklet, poster, other printed matter or advertising literature of any kind in the yard or grounds of any house, building structure, on any porch, doorstep vestibule, in any public hallway, or upon any vacant lot or other private property without having first obtained permission of the owner or of an adult resident or occupant thereof.' Violators of this ordinance are guilty of a misdemeanor.

The problem of accumulating litter constitutes a major concern for many modern municipalities, and the City of Thousand Oaks' avowed goal in enacting the present legislation--the reduction of litter throughout the community--is, of course, a legitimate and, indeed an increasingly urgent, government objective. In attempting to achieve this unquestionably valid goal through a broad proscription of the dissemination of written literature, however, the instant ordinance collides with the constitutionally enshrined rights of freedom of speech and press. Although recent cases have consistently warned of 'the chilling effect upon the exercise of First Amendment freedoms generated by * * * (statutory) overbreadth' (Walker v. City of Birmingham (1967) 388 U.S. 307, 345, 87 S.Ct. 1824, 1845, 18 L.Ed.2d 1210 (Brennan, J. dissenting); see e.g., Dombrowski v. Pfister (1965) 380 U.S. 479, 486--487, 85 S.Ct. 1116, 14 L.Ed.2d 22), and have consequently admonished legislators that '(p)recision Of regulation must be the touchstone in an area so closely touching our most precious freedoms' (NAACP v. Button (1963) 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405), the present section adopts a 'broad brush' solution to litter control and thereby discloses its complete insensitivity to the constitutional freedoms it endangers.

The right to 'distribute,' 'pass out,' 'circulate,' or otherwise disseminate ideas and written material has, of course, long been recognized to constitute an intetral part of the right of free speech. 'The right of free speech necessarily embodies the means used for its dissemination because the right is worthless in the absence of a meaningful method of expression. * * * The right to speak freely must encompass inherently the right to communicate; * * * it contemplates Effective communication.' (Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 284, 29 Cal.Rptr. 1, 6, 379 P.2d 481, 486, see e.g., Martin v. City of Struthers (1943) 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 ('This freedom (of speech and press) embraces The right to distribute literature, (citation), and necessarily protects the right to receive it.'); Lovell v. City of Griffin (1937) 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949 ("Liberty of circulating is as essential to * * * freedom (of speech and press) as liberty of publishing; indeed, without the circulation, the publication would be of little value.' (citation).') (emphasis added).)

This right to distribute newspapers, pamphlets, or any protected material, ² does not, of course, imply a constitutional right to litter. But the instant provision goes far beyond proscribing those activities which constitute littering or necessarily cause litter; in addition to proscribing the 'throwing,' 'casting,' or 'scattering,' i.e., 'littering,' of paper onto property without consent, the section goes on to prohibit All 'distributing,' 'passing out,' 'giving away,' 'circulating,' or 'delivering' of such written material without a property owner's consent. Thus the ordinance does not limit its criminal sanction to those who strew papers on lawns or sidewalks, but by its terms covers those who merely enter on property to distribute pamphlets to others who may be there, as well as those who, in delivering pamphlets, take care to secure their messages so as to eliminate the hazards of litter.

Over 30 years ago in Schneider v. State (1939) 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155, the United States Supreme Court rejected as incompatible with the First Amendment a claim that a municipality could broadly curtail the dissemination of written literature in order to control litter, essentially the same proposition now unearthed by the City of Thousand Oaks. The Schneider court spoke in unambiguous terms: 'We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press. The constitutional protection does not deprive a city of all power to prevent street littering. There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets. * * * (Par.) (T)he public convenience in respect of cleanliness of the streets does not justify an exertion of the police power which invades the free communication of information and opinion secured by the Constitution.' (308 U.S. at pp. 162--163, 60 S.Ct. at 151.)

The city seeks to avoid the force of Schneider's broad constitutional pronouncement by emphasizing two distinctions between the provision at issue in this case and the provision invalidated in Schneider. First, the city suggests that whereas the Schneider ordinance barred the distribution of pamphlets and handbills on the public streets, assertedly the 'traditional' grounds for exercising First Amendment rights, the instant ordinance applies only to distribution at private residences. ³ Second, the city points out that unlike the provision invalidated in Schneider, the instant ordinance does not prohibit All distribution, but 'merely' conditions distribution on the Prior consent of the occupant of the property where distribution is to take place. The city contends that these differences mandate a different constitutional result than was reached in Schneider, but we cannot agree.

Although the public streets, parks and other public places have sometimes been characterized as the 'traditional' grounds for the exercise of free expression (see, e.g., Hague v. C.I.O. (1939) 307 U.S. 496, 515--516, 59 S.Ct. 954, 83 L.Ed. 1423), courts have long recognized that, in practice, house-to-house distribution of written material constitutes one of the principal means of implementing the First Amendment right of communication, and historically have afforded constitutional protection to such distribution. In a separate section of its decision in Schneider v. State (1939) 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155, for example, after observing that '* * * pamphlets have proved most effective instruments in the dissemination of opinion,' the court pointed out that '* * * perhaps the most effective way of bringing them to the notice of individuals is their Distribution at the homes of people' (emphasis added). The court therefore invalidated, as incompatible with the First Amendment, a local ordinance which required house-to-house distributors of pamphlets to obtain a license prior to disseminating their material. 'To require a censorship through license which makes impossible The free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.' (Emphasis added; 308 U.S. at p. 164, 60 S.Ct. at p. 152. See also Lovell v....