# Petition for Writ of Certiorari — City of Thousand Oaks v. Van Nuys Publishing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0543%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 1042 ## Text a _ gN THE i? | Supreme Court of the United States ae Term, 1971 i pon ol - 10 3 8 ¢ City OF THOUSAND Oaks, CALIFORNIA, . . Petitioner,’ vs. VAN Nuys PUBLISHING Crease. INC., a ‘Corporation, Respondeht. Petition for a Writ of Certiorari to the Supreme Court — of the State of California. a” RayMonp C. CLAYTON, * City Attorney, | E. E. CLABAUGH, JR., Assi stant Ci ity A we aim _ $429 Thousand Oaks Boulevard, _ Thousand Oaks, Calif: . 9.1360, Attorneys for City of Thousand . Oaks, Petitioner. . ¢ ss ‘a Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622 Te eX SAD = A Sau PE Re a MO Eee, als ed eee PE me il SUBJECT. INDEX ee i sa r ; Page Opinion Below patrrt ates I ce nc Questions Presented ete Ae eee oe aaa a 4 ; Constitutional United States Constitution, Fourteenth Amendment ; iguanas cee Sn Ne A ET RE CY ipicainsecinaitaniniia 3, 10 ‘ - California Constitutional Provisions: Set ae , N- California Constitution, Art. XI, Sec. 7 oo. 3 a Peg Statuies na ee Page ‘ee of Riverside Ordinance No. 860, Sec: haber te 8 City of Thousand-Oaks Ordinance No.,98 (Codified ‘as Thousand Oaks oe Code, Vol. t,’ Sec. 5-2.04, p. 128). Senet NR SBT 8. dM AN ee a eT ERE 3 ‘City of Thouisitnd! Oaks ° Galinikos No. 98, Sec. ey, Peete ene ine (a NEMO cus es 7, 8, 10, 11. 42 United hae Code, Tite 28, Sec, 1257(3) a tere © > a ~ * J a 3 - ‘ _? xi ’ r . o. t a =o oy 4 7 aod ee ” eo e a * . oft . . ~ F . . * . . © ? ° a - “ goers . ’ 2° 6 e ee tale ae - *, oy ‘ed . , ” Pr * ‘ . - ; e ° ‘ . * ‘ : ". 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Phe . . s a a* , 2 F a - ne e. 4 ae F ‘ ¢ t 4 ’ * $ - ° 2 pee ‘ . é ‘ -e é o e ‘ ° o ° © e 2 & , 2 . ° iB powers not delegated ‘to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or * to the people.” ae, Article X1, Section 7 of the ¢ alifornia Censtitution provides as follows: “A -county or ‘city may make and enhorct ‘within its limits all local police: sanitary, and other or- @pances and regulations not in conflict with gen- eral laws.” _ The First Amendment to the Constitution of the United States provides in pertinent part as follows: “Congress shall make no law. . . the freedom of apeteh, or of the press .- , Section One of the Fourteenth Amendment to the Constitution of the United States provides in pertinent part as follows: .- “No state shall make or enforce any taw, which shall abridge the gag or: immunities of citi- zens of the United States . Ordinances of the City of Thousand Oaks, California, No. 98, (Codified as Thousand Oaks Municipal ge ode $5-2.04, Volume 1, page 128): “Section 4; No person may throw. east. “distribute, scatter, deposit, pass. out. give away. circulate or deliver any handbill. dodger. circular, newspaper. 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 or vestibule,. in any public hall+ Way, Or upon any vacant lot or other private prop- . erty without having first obtained permission of the owner or of an adult resident or occupant thereof.” "(Entire text of No. 98, of the. Ordinances of the City of Thousand Oaks, California, is set out in Appendix D.) ) : Only Section 4 of the Ordinance aay attacked on appeal and ‘the California Supreme urt. dealt: only with that section. The Supreme Court’s order, how- _. ever, was that the judgment be reversed. Judgment of .the lower court had cgnstrucd all of- Ordinance 98 as being valid, enforceable, and constitutional, both in general and as applied to Van Nuys Publishing. While the holding of the California Supreme Court may have been broader than was intended, it is the above section which has application with regard to the respondent. A It has further been’ agreed and conceded by peti- " .tioner and respondent that Section 4 applies only to private property and not to private property which has unlimited public use, such as a shopping center. Statement of the Case. . . _ The petitioner, City. of Thousand Oaks, California, is a municipal corporation located in Ventura County. The City of Thousand Oaks is located approximately twenty miles from the vast San Fernando Valley and ~ Laos Angeles with its large commetcial area. It is a * residential community with a population of about 45.- 000. A substantial portion of the residents of Thou- sand Oaks are employed and shop in the Los Angeles area, Thus Thousand Oaks becomes a fertile ground for merchants attempting to attract business to Los Angeles and its surrounding communities. Most+of the residents moved from dense urban areas to the Thou- sand Oaks area in-order to enjoy the advantages of a community located in a semi-rural area. While the city is made up largely of -housing tracts, it is located in ‘a valley surrounded by rolling hills. During certain times of the year the area is subjected to strong’ easterly - winds known as “Santanas.” Unfortunately, as in many other areas, Thousand. Oaks has experienced 2 grow- ing number of residential burglaries . in recent years. The citizens of Thousand Oaks have been subjected’ to “throw away” publications which contain a modicum ‘of news items and a disproportionate amount of ad-— vertising. These publications were distributed by throwing them on private property and the area wag saturated with these on a regular basis. bg Van Nuys: Publishing Company, the respondent in this action, is a publisher in the San Fernando Valley of one such advertising publication, the “Valley News and Greensheet,.” distributed at regular intervals. Prior to the passage of Ordinance 98 citizens within the com- "munity of Thousand Oaks had attempted to stop the distribution of this publication to their homes by re- questing the publisher to cease delivery. Such a method proved ineffective. While distribution. to these resi- .dences would cease for a short period of. time, it would resume without. permission or request of the occupant or owner of the property. In this manner the ,Respond- ‘ent maintained its- high -circulation figures for its ad- vertisers. The citizens. of "Thousand Oaks beliéve that the dis- tribution of advertising material in this particular man- ner constitutes 2 nuisance and a detriment to the com- malic: . munity. It has a particularly adverse effect in the ac-; cumulation of litter, making many of. the . residences unsightly. During those periods of time when the ‘area * was subjected to high winds the papers often come loose and blow helter skelter around the neighborhood. - It has been the opinion of many police agencies that . persons who wish to commit residential burglaries _and—-— vandalism use the aceumulation” of such ‘freely distrib- “uted publications as an indication that a house is vul- . nerable ta being byeken into. The regular chore of removing the unwanted publications from the citizen's property constitutes a significant burden to that indi-. _ vidual. Jf a citizen allows thé publications to accumu- late, hj ‘yard becomes unsightly. The accumulation of . Such. litter has an adverse effect not only on the prop- erty upon which it has been placed, but also on the surrounding neighborhood. At the urging of the. citizens of” the City of Thou- ‘sand Oaks, the City Council formulated legislation to deal with this problem. The Council felt that a person who gave his permission would be sufficiently interested in those publications to make use of them and not to allow them to ‘accumulate. On the other hand, allowing the materials to be distributed until a request to stop was made had proved ineffective in the past. As a re- sult’ of the urging of its citizens, the City Council passed Ordinance No. 98: That ordinance became ef- _ fective on or about August 18.° 1966. Prior to the ordinance becoming- effective. the respondent, Van Nuys Publishing Company, filed a complaint seeking to en- join its enforcement. The request for injunctive relief ‘was based on the ground that the enforcement of the. ordinance would deny Van Nuys Publishing Company equal Papen ‘of the law and would also act as an -* . a. _ unlawful abridgment of ‘com of ‘the press and freedom of speech. After a trial by the court, Judge Richard Heaton filed a judgment on July 9, 1969, denying the perma- nent injunction and declaring- Ordinance 98 to be con- -stitutional, both generally and as it applied to the Van. Nuys Publishing Company. The Van Nuys Publishing Company appealed this’ decision to the California _ Court of Appeal. Although the original complaint at- tacked the entire ordinance, the appeals to both the California Supreme Court and the California Court — of Appeal tested only the constitutionality of Section 4; the only section“ factually applicable: to the Van Nuys ’ Publishing Company. On January 8, 1971, the Cali- fornia Court of Appeal affirmed the finding of the lower court that the statute was constitutional. Upon the petition of Van Nuys Publishing Company the- Cali- fornia Supreme Court.granted a hearing to review the lower court's decision. On October 18, 1971. the Cali- | - fornia Supreme. Court. reversed the judgmént of. the __ lower court on the grotind that Section 4 of Ordinance 98 was unconstitutional. The petitioner sought rehear- ing in that matter. which rehearing was denied on _November 17, 1971. REASONS FOR GRANTING THE WRIT. * a e The Decision of the Califernia Supreme Coyrt Directly Conflicts With Federal Decisions | Dealing = ‘With This Type of Legislation. The California Supreme Court specifically ruled that Section 4 of the Ordinance No. 98 was unconstitu-. _ tional as being violative of the rights of freedom of speechyand freedom of the press. In doing so, the Court failed to distinguish prior cases which dealt ‘with ordi- nances similar to this. In Buxbom v. City of River side, 29 F.Supp. 3 (D.C. S.D. Calif. 1939) the Federal District Court passed ~ upon the = ‘constitutional validity of an identieal provi- sion. Section 5 of ‘Ordinance No. 860. of the City of Riverside, California, read as follows: “Section 5: It should be unlawful for ‘any person, firm or corporation,.to ‘throw, cast, distribute, de- posit, scatter; pass out, give away, circulate or deliver any handbill, ‘dodger, circular, newspaper, papér, booklet; poster, or any other printed matter or literature in the- yard or grounds of any house, building. structure, or on any porch or doorstep or. vestibule or in any public hallway thereof or upon any vacant lot. or other private property without having ‘first obtained permission of the owner, or of an adult resident or occupant there- of.” ee : In Buxbom. the Court found the statute to be ol stitutionally valid. That Court held that such an ordi-* -_ nance was not a burdensome restriction on the distribu- tion of written material. It further held that some limi- tation as to the time and place of distribution of writ- ‘ten material was permissible in order to prevent the ewe ‘@ misuse or‘cluttering of public streets afd private prop- erty. The Court’s reasoning was based on ‘previous de- cisions by the United States Supreme Court, including Lovell.v. City of Griffin, Ga., 303 U.S. 444 (1938). _ “It is the Rivérside. ordinance which the: City of Thou- satfd Qaks uséd as a model in seca. its own legisla- — tion. : The California Supreme Court also failed to dis- tinguish:- Breard v. City of Alexandria, La., 341 US. 622 (1951): In that case the court was asked to deter- mine’ the ‘constitutionality of an ordinance which pro- hibited door-to-door canvassing without the prior con-. sent of-the homeowner’ who was to be. contacted. The ai, Supreme Court, held that such a‘statute "was a Nasonable exercise of police power and was a . valid balancing between the First Amendment rights and the oright of persons to enjoy: the privacy of their ‘own property. The statute was valid because: it exer- . cised no prior censorship of the. material to be presented. The ordinance in the, instant case does “not pass on the substance of any printed material, but merely Tegu- lates the procedure by which advertising ‘material can be distributed. 2. The Decision of the- California Supreme C Conflicts With Constitutional Principles Set Forth in Prior Decisions + one With the First Amend- ment. While freedom of speech arid freedom of the press . have always been given the most stringent of protection by the judiciary. it has long been held that these free- doms are not absolutes. While the court must foremost protect the individual rights to speak and publish freely. if these individual statements adversely affect c ee alli J the majority, the court ‘must balance these. freedoms ~ | ' with the effect of their exercise. Schenck vy. United - States, 249 U.S. 47 (1919). On previous occasions the 3! Supreme Court of the United States -has sustained other ordinances which regulate but do not curtail the. freedom of spécch . and press. Kovacs v. Cooper, 336 U.S. 77 (1949). The California Supreme Court has viclated this bal- ancing principle by holding Section 4 of Ordinance 98 to be unconstitutional. The ordinance is not a denial of free speech. A city council has long had a right to’ speak for its citizens and td ‘preserve and protect per- sons and property. Breard v, City of Alexandria, La., supra, 341 U.S. 622 (1951). The municipality’s in-—~ terest in regulation of - things which affect the environ- ment is a valid exercise of its police power. Groeb v. Fox, 274. U.S. 603 (1927). This ordinance does not thwart the distribution of printed matter, it simply gives - to the intendéd recipient the right of refusgl. The California Supreme ~Court suggests that the City should adopt a procedure allowing those who do not wish to receive the material to be placed on a list which would be distributed. to the publishers. While ‘such a procedure is constitutionally valid, Rowan v. Post Office Department, 397 U‘S. 728 (1970), it is certainly’ not exclusive, and may not be effective. To force such a procedure on a municipality would be to fall prey to the. te evil Justice Frankfurter described when he said, “we should not, however, unwittingly slip into the judgment seat of. ‘legislatures, ” Martin v. City of Struthers, Ohio, 319 U.S. 141 (1943). The statute dogs-not violate due process as set forth in the - Fourteenth Amendment to the United States Constitu- tion. The mere éxistence of the ordinance will be suf- & / . —_— — . ficient prior warning that those individuals who wish ees distribute such material’ in such a manner must first get permission. If such notice exists, subsequent regula- tian?is hot unconstitutional. Breard v. City: of Alexan- . — ‘dria, La., supra, _ USS. 622 (4951). 3. The California uecene. Court Erred in Not Con- _ struing the Ordinance in Such.a Manner as to Preserve Its Constitutionality. . It is the position of the City of Thousand Oaks that the statute in- question, Ordinance 98, applies only to ad- vertising material. As in the case of Valentine: v. Chrest- engen, 316 U.S. 52 (1942), a. governmental body may - reasonably regulate the. distribution of. material which contains equal portions of advertising material and’ polit- . ical statements. The City dées not take the position that this statute need’ be applicable ,to publications _ which are primarily religious or political in nature. It has not been found that-these types of publications “ereate the same nuisances as those of materials which the City seeks to restrict. Most political and religious publications are not systematically distributed dn a ' daily or a weekly basis as are the advertising _publica-. tions, Such as the Van Nuys publication. | It has long been. recognized that legislation should be constftied in such a manner as to insure that it is «constitutionally valid. United States v. Congress of In- -. dustrial Organizations, 335 US. 106 (1948). This: - principle has been followed within the state of Califor- nia. In re Cox (1971) 3 Cal.3d 937. The lower court in _its opinion at page 20 (Appendix A) states that under ; aoc circumstances ‘it would follow this principle. , _ howeyer. since this ordinance deals with a First ‘Amena- " ment ut right, the: mere er of the ordinance endanger — Rat Ree ee the, free distribution of ideas. Such temerity has not been evidenced :in prior-decisions made by. the Supreme Court ‘of the United ‘States. On prior occasions, that — court has narrowly construed statutes dealing with the . First. Amendment in ‘order to preserve t cir constitution. - ality. Kovacs y. Cooper,- supra, 336°U.S.. 77 (1949); Cox v- State of New Hampshire-312 U.S. 569 (1941). As’ Stated in- United diares v. Congress of Industrial Organizations, supra: , : “The. oblig gation rests also upon this court in con- struing congressional. enactments to take care to _ interpret them so ‘as to’ avoid a danger of uncon- eS stitutionality.”” 68° S. Ct. 1349 at page 1356. As pointed out by the’ dissenting opinion of the court below, the California Supreme Court -can and must vas cons{rue the ordinance in ‘such a manner as to encom- “pass both the legitimate objectives of the municipality. as rae and to -protect the preservation of ust Amendment Tights. | See ep i. 4, ‘The Decision in. This Case Will Have an dee in Areas Outside the Immediate Factual Situation | : Involved. te ers f . In passing Ordinance No. 98, the City of Thousany __Qaks. made the determination that’ the unsightly. ac-\ cumulati ion of litter was adverse to the best interest of’\. the community.- It is further accepted .that the aecumu- \, lation of such. materials in residential areas are one of. . x its the signs that- would-b& burglars seek in choosing. a-_ house to victimize. The ‘City 6f Thousand Oaks feels | that it is protecting the best interests of the majority of the population and the beauty of its environment. The Supreme Court of California has-denied’ the Tight of the. majority of citizens to take reasonable and effective Pa —13— measures in dealing with their bést interests. It has ruled contrary to ‘constitutional principles. This devia- tion sets a precedent Whick, will affect all other munic- ipalities and citizens within California, the most popu- lous state in the Union.. In constructing its ordinance, _’ the City followed the, ptinciples of . balancing set forth " by prior court decisions. To allow the decision of the - California Stipreme ‘Court to stand will be to allow the erosion of these principles. Pid f -' The City of Thousand Oaks has ane fe deal with a-very real problem. “As the population expands and the advertisers. seek ‘to attract this population to’. purchase: more products, the need: for ‘governmental | regulation to protect our natural resources and rights of privacy and property. will become more acuteeEvery- where. arash and litter accumulate: neither’ public. nor’ ‘private property is Safe and free from this abuse. In the. present context the question is presented in terms of rights of free speech in: advertising’ literature. Certainly — other thunicipalities will develop an intérest’ in protect- _ ing their citizenry from the same nuisance. Already: cit-. izens face an - avalanche of advertising in the mail: ‘now ‘in “California. the citizens. face an avalanche: of | printed material in their font driveway shrubs and: flowers and’ Ww ho knows where else. 4 _ The impact of. this question has_ its apptication | ir ‘more .areas than freedom) .of speech’ and. press. The questions presented will have application: to any area | in which the - ‘municipality. seeks to regulate a commer- cial interest for the good. of its citizens. and to main- tain. cleamagd litter-free private. property to enhance the environme t and ‘the beauty of ‘natural. surround- : ings, : pat. ‘ id o.% +. Conclusion. For these reasons, a writ! of veftiorari should issue ° to review the judgment anfl opinion of the Supreme Court of the State of California. -s February 11, 1972. ii ~~ Respectfully submitted, RayMonp C. CLAYTON, City Attorney, j E. E. CLABAUGH, Jr., — Assistant City Attorney, . Attorneys for City of Thousand ‘ Oaks, Petitioner. a” \ “ ad - APPENDIX A. ‘Opinion of the Supréme Court of the State of California. "In the Supreme Court of the State of California, in Bank. _ Van Nuys Publishing Company, Inc.. Plaintiff and Appellant, v. City of Thousand Oaks, Defendant and Respondent. L:A. 29866, (Super. No. 49834). Filed: Oct. 18, 1971 Plaintiff’ Van* Nuys Publishing Company instituted this action to enjoin defendant. City of Thousand Oaks from enforcing gv newly enacted “anti-littering” ordi- nance on.the ground that the provision, on its face and as applied, constituted an unconstitutional abridge- mgat of First Amendment rights. After initially issuing a preliminary injunction as requested by plaintiff, the trial court rendered judgment in favor of the city, up- holding the consfitutionality of the challenged ordi- » nance, The publisher appeals from that decision. __ For the reagons 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 nar- | row measure aimed. specifically at those who litter ér + 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 off all types of written material: as such, the challenged provision un- questionably exhibits the Tamiliar unconstitutional vice of “overbreadth,” proscribing constitutionally protected a _ — oe S 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 curtajling a predominant means of direct person-to-person and house-to-house distribu- tion of written material, inftead of fashioning its pro- scription precisely to the problem of littering, cannot withstand constitutional scrutiny. saa. Section 4 of city ordinance No. 98, the section -at- ‘tacked on this appeal,’ provides in full: “No person’ -may -throw, cast, distribute, scatter, deposit, pass out, give away, circulate or deliver any handbill, dodger, circular, newspaper, paper, booklet, poster, other printed ? ~— : ‘Ordinance 98 is entitied “An Ordinance of the City of Thous- and Oaks Declaring the Throwing or Distributing: of Printed Matter on Public and Private Property Without Consent to be a Public -Nuisance and Unlawful.” It pfovides in full: “The City Council of the City of Thousand Oaks does _ ordain as follows: a. “SECTION 1. The City Council of the City of Thousand Oaks finds and determines that entire communities within - the City and, a considerable number .of citizens are adversely affected by persons, without consent, throwing, casting, dis- tributing, scattering and depositing handbills, dodgers, cir- . Culars, newspapers, booklets, posters, printed matter and _ advertising literature upon public and ‘private property. These acts are declared to constitute a public nuisance. “SECTION. 2: No person may throw, cast, distribute, scatter, deposit or place upon any public place within the City, including but not limited to streets, alleys, public parks and ‘school grounds, any handbill, dodger, circular, news- paper, paper,*booklet, poster or any other printed matter or advertising: literature ‘of any kind: provided, however, the same may be personally delivered to those who are willing to accept the.same. : “SECTION. 3. No person may throw, distribute or place in Or on any automobile or other vehicle in’ the City any handbill, dodger, circular, newspaper, paper, booklet, poster, or any other printed matter Gr advertising literature without (This footnote is continued on next page) ee matter or advertising literature of any kind in the yard ‘ or grounds of any house, building structure, on any. _ porch, doorstep or 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, m@dern municipalities, -and the City of Thousand Oaks’ avewed goal in enacting the present legislation—the reduction of litter through- ‘out the community—is, of course,'a legitimate and, in- deed an in¢reasingly urgent, government objective. In attempting to achieve this unquestionably valid goal- ' : 3 a ; first having obtained permission of the owner. or person ; In possession thereof. we “SECTION 4. No person may throw, cast, distribute, Scatier, deposit, pass out, give away, circuldte or deliver -. amy handbill, dodger, circular; newspaper, paper, booklet, ' poster, other printed matter or advertisimg literature of any kind in the yard or grounds of any house, building structure, on any porch, doorstep or vestibule, in any public hallway, - or upon any vacant lot or other private property without having first obtained perntission of the owner.or of an adult resident or occupant thereof. : “SECTION 5. If-a section of this ordinance is invalid, all valid sections that are severable from the invalid section re- mains [sic] in effect. If a section’ of this ordinance is invalid in one or more of its applications, the section remains in , effect in. all valid applications that are severable from the . invalid applications. cor “SECTION 6. Any person violating any of the provisions. of this ordinance shall be guilty of .a misdemteanor and upon conviction thereof shall be punishable by a’ finegof ‘not ‘more than Five Hundred. Dollars ($500.00) or. by imprisonment in the county jail for a period of not more than six months. or by both such fine and imprisonment.” : Only section 4 of the ordinance is attacked on this appeal and, therefore, we naturally confine our aétention to this por- tion of the ordinance. For convenience, however, we shall hereinafter utilize the term “ordinance” and “section 4” in- . terchangeably, unless otherwise specified. . . : o a > “ —6— biguous terms: “We are of. the opinion that the purpose to keep the streets clean and of good appearance is in-' ° sufficient to justify an ordinance which -prohibits a per- son rightfully on a public ‘street from handing litera- ture to one willing to receive it. Any burden imposed upon the city: authorities in cleaning and caring for the streets as an indircet consequence of such distribution . results from the constitutional protection of the free- ~ dom 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 lit- tering.“ Amongst these is the punishment of thase who actually throw paper _on the streets .-. . |Par.| | T {he : public convenience ‘in respect of slenaliagts of the .Streets does not ‘justify an exertion of police power which invades the free communication of information 2 and opinion secured by the C onstitution.” (308 U.S. at. pp. 162- 163.) ~The ¢ city seeks ‘to. pe 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 Se hneider. First, - the city suggests ‘that whereas the Sc hneider ordinance _ barred the distribution of pamphlets and handbills on the public streets,-assertedly the “traditional” grounds for “exercising First. Amendment rights, the instant: or . dinance applies only to distribution at. private resi- - dences.* Second, the city points out that unlike the pro- Although the language of section. 4, covering distribution “ern-- the grounds of any. . building Structure, 2 . . fin} any vestibule, . any public hallway, fand on] any vacant lot,” by no means clearly -excludes the ordinance’s application to . distribution on the grounds of public and quasi-public “ baiildings,” we need not determine the precise scope of the challenged ordinance since we , - have concluded that the ‘enactment jis in’ any event invalid even if limited only: to distribution on private residential deities ’. ‘’ we. Br, vision invalidated in Scimneider, the instant ordinance does. not prohibit ail. distribution, but “merely” condi- tions distribution on the prior’consent of the occupant of the property where* distribution is to“take place: The Aity contends that pa differences mandate a different’ than was reached in: Schneider,. .constitutional result but we cannot agree. airs Although the public streets, ne ‘and other public / places have sometimes been characterized ' ‘as the “tradi-. tional” grounds for-the exercise of free expression (see, e.g., Hague v. C.1.0. (1939) 307 U.S..496, 515-516), ' courts have long recognized that, in practice, house-to- house distribution of: written material constitutes one of the principal means of implementing the ‘First Amend- ment right of communication, and historically have af- , forded ‘constitutional protection to. such distribution: _In’a separate section of its decision in Schneider vy. State (1939) 308 U.S. 147, 164, for example, after ‘ab- serving that “.. . pamphlets have proved moat effective instruments in the dissemination of opinion,” ’ the. court pointed out that “. . . perhaps the most effective: way | of bringing them to the notice of iridividuals is their distribution at the homes of people” (emphasis added). The court therefore: invalidated, as incompatible with _ the First Amendment. a local ordinance - which re- quired house-to- louse distributors of pamphlets to ob-- tain a license prior to disseminating their, material. “To require a censorship through license which makes- impossible thé free and unhampered distribution of pamphlets strikes at the very heart of the. constitutional . guarantees.” +: (Emphasis. added: 208 U.S. at p. 164. _See also: Lovell v. City of Griffin (1938) 303 US. "444: Cantwell v. Connecticut ( 1940) 310 US. 296. ) . Sh “In Martin v. City of Struthers (1943) 319 U.S. 141 145-146, the court developed | the significant role ful filled: by house-to-house distribution of ideas. -“Th widespread use. af this: method of communication’ by many groups espousing various, causes attests ‘its major importance. . . . Many. of our most w idely establishec religious, organizations have used this: method of dis seminating .their. doctrines, “and Taboring groups “have used wit in recruiting their mémbers. The ‘federal -goveri- ment. in its current war bond selling ¢ campaign, encour- ages groups of citizens to distribute / advertisements, and circulars from house to -house; Of’ course, ag every " person acquainted with. political life knows, door to door campaigning is one of the most accepted tech: niques of cking popular support, while the circulation of nominating papers would be ‘greatly handicapped if they could not be taken to the citizéns:in their homes. Door.to door distributionOf circulars j Is essential to the . poorly financed causes of little - people.” (Footnotes omitted. ) ¢ Finding this “right to disseminate information door- to-door™ substantially impaired: by a local ordinance -Which forbade distributors ‘of literature from. ringing, doorbells or sounding door knockers, she Martin court invalidated the. provision as incompatible with the First Amendment. In Marsh v.’ Alabama (1946) 326 U.S. 501. 505, ‘the court characterized its decision in ‘Martin as holding broadly that “the preservation -of a free society is so far dependent ‘upon the right of each. individual citizen to receive such literature as he him- self might desire that a municipality could not, without jeopardizing that vital individual freedom, prohibit door to door distribution . literature.” (Emphasis added. ) A ; saa er / 141; ; The city ‘contends,,. however, hat while these prec? ful- .edents thay determine thay it €annot -constitutionally ‘The. prohibit all house- to- howe distribution of protected lit- by : _ erature, the “Cases do not invalidate ° the instant, ‘ordi-. ajo nance, which does not ban all distribution, but “merely” shed _ is conditions distribution on the prior consent of the ac-° dis- ‘ ‘cupant..of the property.; “where | distribution is to take — ave ‘place. In the context of private residences, however, a ern \ requirement that a distributor obtain consent -prior: to. our- the delivery of written material will, as a: practical! mat- and - ter, frequently operate to curtail completely this means very: -of communication. The present: enactment does not re- . to. « ‘strict itself * fo persons. who distribute matter on a regu- >ch- : Jar basis, but applies also to those, such. as local’ polit-* ion ical- candidates or -neighborhood groups, who may dis- | taf tribute litefature on-only a single occasion.. As to these ies. distributors, section. 4’s: “prior consent” requirement’ the may well make. canvassing prohibitively time-consum- tes. ing and _expensive, ‘since successful communication will - : : often requires » repeated® visits until the. distributors find oy eae ; _/ someone at .the residence.” In. this day ‘of rapidly in- nce +L creasing political campaign expenses, attributable to the ing great cost of ‘television. and ‘other mass media adver- urt . tising, house-to-house’ distribution of campaign -litera- the ture remains one of. the few available channels of com- 56 _ munication ‘open: ‘to the less-than- Wealthy political can- in didate;' in practical terms. the : instant ordinance a. ae! ae ; ~ oa "AJustice Black's s obseryation in ‘eos Ve Cooper (1949) 436 - ;, * U.S. 77, 103 (dissenting opinion } that an effective ban on the im- “use of sound trucks would asSure * ‘preference in -the: disserhination mut of ideas .. . [to] those whe have money enough to buy advertis- ‘ing from newsp: ipers, radios or maving pictures” has even greater OF validity when applied to, the practical cugtailment, | of aeacsing canvassing. ; ” as . . —10— _ Would go far to eliminate such communication. This * consequence, of . course, inescapably collides with con- stitutionally enshrined rights. | Tie Gity urges. however, that while an individival . may have a constitutional right to distribute matetial to willing recipients, he has no right to force his ideas on * unwilling subjects. Relying heavily on Di- Vorenzo v.° City of Pacifit Grove (1968) 260 Cal. App.2d 68, which upheld asimilarly worded ordinance in the face” of a constitutional attack, the defendant characterizes the instant. ondinance’s requirement of “prior vonsent” ‘as: doing no more than protecting the rights of unwillitig “listeners.” To support its approval of an *.analogeus “prior consent” provision.” the Di Lorenzo court cited a passage from the United Stites Supreme Court decision of Kovacs v. Cooper (1949) 336 US. 77, 87. declaring: “The right of free speech is guar- anteeds every citizen that he reach the minds of Willing listenefs and to doa there von ere 40 win their attention.” . Although Di Lorenzo stnensied ‘only. the willing “$e tener” language of the above quotation. we believe that in so doing the Court of Appeal overlooked the. prin- cipal thrust: of the, entire statement: in order for to reach, the minds’ of willing Jistepers. ‘the Kovacs court recognized that the speaker. the Uisseminator af “Th ordinance «i neue if Di Lorenco provided. “it shall he unlawful for any person: firm. of comoration, of any agent or emiploree Of any person, firm oF corporation t othrow thto, leave ‘ upon. or scaffer onto any re property wi the City of Pacife Cyove without the consent of the owner thereof or his agent. os the occupant of said private property any Rowspaper- handiwil. pamphlet. circular, deer. pe anv mivertiome shéct or matier gevined of intended to poreaats any commercial or moncy- making activity. ~ ~~ . —~LI— . . . ideas, must be given an “opportunity 10 win oa tion.” This object. of. course, is all the distributor of pamphicts seeks to “actomphish; “1 win the atten- : tion.” and-perhaps ultimately. “to reach the minds,” of those willfng to read the disséminated material. A prin- cipal vac of the instant ordinance is that it withdraws. - asa matter of municip&l, policy, the possibility of communication between a distributor and those “will- ‘ing™ recipients who are not present to’ give personal | ‘consent to the delivery of distributed literature. (C£-— Martin v. City of Struthers (1943) 319 US. 141, 143-P44.) “4 We do recognize, of course, that thé state does have a legitimate interest in protecting individuals from having undesired material forced upon them. and, more- over. that this imtefest in ‘personal privacy takes on. special significance in the context of private residences. *(See Rowan v. Post Office Department (1970) 397° U.S. 728. 736.) Fhe instant ordinance. however, . goes considerably beyond preserving a homeowner's indi- vidual choice.” since it prohibits “distribution to those occupants who have. raised no objection to the material as Well as to those who have. instead of merely -protect- ing the “unwilling listener.” as the city contends, the - present ordinance thus impairs a distributor's opportu- hity “to win the attention” of all uncommitted “listen- . - = 3 ] , Furthermore. the city’s professed gaal of protecting ~ “unwilling listeners” could be equally served by a more derseuty drawn provision! which simply ‘proffibited a distributer from delivering material to any occupant . who had expressed .an objection to such distribution. Such an ordifatce. placing the initial burden on the _ homeowner instead of the distributor. would not. in . —12— « effect, destroy First... Amendment rights. Given the. * availability of this less restrictive alternative, we believe ue the present ordinance is unquestionably unconstitution- «al. (See e.g., Sherbert v. Verher (1963) 374° U.S. 398. 407; Fort v. Civil Service om. (1964) 61 Cal.2d 331, 337.), : - Several United States Supreme Court decisions sup- port our conclusion that a proper accommodation of the _ competing First Amendment and privacy values at is- sue requires that the ifitial burden be placed on the a homeowner to express his objection to the distribution of material. In Martin vy. C ity of Struthers (1043) 319 U.S. 141, the court confronted a local ordinance which prohibited distributorsS ef literature from. ringing any doorbell or sounding any doorknocker, even hough the homebwner had not expressed any objection to such “communication In invalidating the ordinance, -the Martin court made clear that the Provision’s principal vice lay in its prohibition of .communicatien when there had been no objection voiced by the householder. - The. Martin court said, “Traditionally the &merican law” punishes persons who enter onto the. property of- ‘another after having been Warned hy the owner to pre off. - We know of no state which, as does- the Struthers. ordinance in ¢ffect, makes a person. a criminal trespasser if he enters property of another for - "an innocent purpose withqut an, explicit command of the owner to stay away. The National Institute of Mn- nicipal Law Officers has: proposed a form: of regulation to its member citiés which would “make it an offense for any person to ring the bell of ‘a householder who’ has appropriately indicated that he is unwilling to be + s . . —13— > . distur bed. This or any similar regulation leaves the de- ‘cision as to-whether distributors ofJiterature may Jaw- -fully call at a home where it belengs—with the home- owner himself. A city can punish those who call at a home in sefiance of, the previously expressed will of the occupant...” (emphasis added: foomotes omitted). (319 US. at oo. 147- 148). More recently, in Rowan v. Post Office Department e! (1970) 897 U.S. 728,- the court addressed a federal statute which established a procedure under which an individual, who ‘received mail which he considered _ ““erotically arousing -or sexually provocative.” could . lodge kis objection to such mail with the Pést Office Department, which would then-communicate the com- plaint to the sender of the material: The statute provided m - that after notice. of the objection had™been’ given,’ the sender could not continue to send suck mail: to the. objecting houscholder; criminal penalties were provided - for the violation of the prohibition. Sevcral mailers attacked this statute on First Amendment grounds. ° claiming the provision violated their right to distribute literature. In rejecting this contention: the court “em- . phasized that. under the federal statute. distribution was- barred only after the householder had first’ voiced -his objection: “The Court has traditionally respegted he right of a househalder to har. Ay order or notice, wh tors. hawkers and peddlers from his property. See M tin V. Struthers. . . . In this ‘case the mailer’s. right to communicate is circumscribed only by the affirma- tive act of the addressee giving notice that he wishes no further mailings from that mailer.” ¢E) mnphasis added)° - (397 US. at p. 737). e . of —14— The teachings of Martin and Rowan establish souhd — guidelines for the formulatien of regulations in this area. _ To preservé a homeowner's control corr “castle,? -% a city may certainly prahibit a distributor from deliver. . ing matter “in defiance of the previously éxpressed will. of the oceupant” (Martin v. City of. Struthers (1943) 319 U.S. 141, 148). The homeowner can. of_ course, express his objection ‘to “distribution in a variety of ways: he might, for example, post a. sign on his prop- erty or, in the case of “regular” distributors, write or - telephone the disseminator to instruct him to’ discon- _ tinue delivery. Alternatively, the city might adopt the Rowan procedute as a model, and establish a municipal office both to channel complaints to offending distribu- + tions and to monitor distributors’ responses. Fhe choice of method, of course remains witi cach municipality. A city cannot, however, preserve “privacy” (or attack “litter”) by prohibiting all distribution without “prior consent,” as the City of Thousand @aks has attempted to do here.* The potentially devastating effect on First Amendment rights of such a proyision necessitates that the: city adopt a Jess restrictive alternative method to achieve its legitimate goals. ; In sum, though attempting to meet the very real ~ Problem of accumulation of litter. the .present penal en- " actment. goes substantially beyond what is necessary to achieve the city’s anti-lettering objective and, in so’ ‘doing, treads directly on, First Amendment’ rights. As” the United States Suprerfe-Court observed in Thornhill v. Alabama (1940) 310 U.S. 88; 97-98, there is a —_s— “Di Lorenzo v. City of Pacitic Grove (1968) 260 Cal. App. 2d 68 is disapproved insofar as it is inconsistent with the views ° expressed “bove,, F & ake “pervasive threat inherent in |[the| very existence .. : | [of] a penal statute. . . Which does not ‘ain? specifically at evils within the allowable area of state control but, on the contrary. sweeps within its ambit other activities | that in ordinary circumstances constitute an exercise of | freedom of speech or of the press. The existence of | such a statute . results in a continuous and _per- vasive restraint on all freedom of discussion -that might reasonably be regarded as within its purview.” Thus, although in, other contests we would normally strive to construe the language of the ordinance narrow- ly to: preserve its constitutionality, we believe that its “chilling effect” on sensitive First Amendment rights forecloses its rehabilitgtion ‘and compels its demise as unconstitutionaF on its face. The very presence of the of ideas. The would-be lay pamphleteer does not turn to court decisions to find a judicial interpretation of the Only the stout-hearted will brave prosecution for the _ sake of publication. As the High Court observed in . Dombrowski ‘v.. Pfister 11965) 380 U.S. 479, “If ‘the rule were otherwise {than invalidating the statute a: whole}. the contours of regulation would have to hammered out case by-case—and tested only, by those bardy enough to risk ‘criminal prosecution to determine: ™The objectionable qualisy of vagueness and overbreadth does not depend upon absence of fair notice to, a,criminally . «rdinance on the baoks endangers the free distribution : _ ordinance; he reads the ordinance. Its cold words of “absolute prohibition may stay his publication. accused or upon unchannelled delegation of legislative powers . but upon the danger of tolerating. in the area of First ‘Amend- ment. freedoms. the existence penal statute susceptible of sweeping and improper aprik tion” (N \ACP v. Butten (1963) 371 U S.. 415. 432-433 -Seé eencsally N Te The First Amend- ment Overbreadth Doctrine #1970) S83 Har... Rev. $44.) ‘ b& . ‘ * -- = the proper scope of regulation:” (Id. at p. 487.) “Be- causp of the sensitive ‘nature of constitutionally protect- ed expression, we have not required that all of those Subject to overbroad regulations risk prosecution to test their rights. For free expression—of transcendent value to all society, and not merely to those exercising their rights—might be the loser.” (Id. at ‘p. 486; see, eg., United States v. Robel* (1967) 389 U.S! 258. 266; Aptheker v. Secretary of State (1964) 328 U.S. 500, 514.) es : The gravity of the dangers inherent in the instant ~ ordinance. is perhaps best appreciated through a brief glance back to our country’s revolutionary beginnings. If the present law had been in force in eighteenth cen- tury America, the colonies may well have preserved the | cleanliness of their+streets only at the prie€ of stilling ~ the dissident voices of such “pamphleteers as Thomas Paine, Andrew Eliot and John. Carmichael.* Without the .unique . contribution’ of the political pamphlet,’ ‘Thomas Paine, Common ‘Sense (Philadelphia, 1776); An- drew Eliot, A Sermon Preached before His Excellency. Francis Bernard “(Boston 1765); John, Carmichael. A Self-Defensive War Lawful (Lancaster, Mass., 1775). See generally Pamphlets - . of the American Revolution (Bailyn ed. 1965). - "The peculiar virtues of this mecium of communication have been aptly described by George Orwell: “The pamphlet s a one- man show. One has complete freedom of expresSion, including, if one chooses, the freedom to be scurrilous, abusive and seditious: or, on the other hand, to be more detailed. serious and. ‘high- brow’ than is ever possible, in a newspaper or in most kinds. of periodical. At the same time, since the pafnphlet is: always short and unbound, it can be produced much more quickly than a book and .. . can reach a bigger publig. Above all, the pam- phiet does not have to, follow any prescribed, pattérn . . : All that "IS requiredgof it is that it-shall be topical, polemical and short.” . (George Orwell, Introduction in 1 British Pamphleteers 15. (Or- well & Reynolds eds. ]94%). , . - a s Roe | —-17— our counttiy’s founders might have been deprived of Common Sense’ s vigorous , call to. “[{S}tand: forth! Every spot of the old work is overrun with _oppression. Freedom hath been huted round the Globe. ‘Asia and Africa have long expelled her. Europe regards her like a stranger, and England hath ‘given her warning to depart. O! receive the fugitive, and prepare in time an_ asylum for mankind.””’ | ree “\ Thé judgment i is reversed.: | Boat. a Tobriner, J. WE CONCUR: Wright, C. J. Peters, J Mosk, J. ‘Sullivan, J. oO . : -WThomas Paine, Conmvnon Sense (Philadel Iphi: 1776) in The Writings of Thomas Paine 400 101 (Conw say ed. 1894- 1896). —18— _ DISSENTING OPINION BY BURKE, J. I dissent. It is a cardinal principle of constitutional. ine that if “the terms of a statute are by fair’ and reasonable interpretation capable of a meaning consist- " ent with the requirements of the Constitution, the stat-. ute-will be given that meaning, rather thane another in ° ‘conflict with the Constitution. { Citations. |” (San Fran- . - _ cisco Unified School Dist. v. Johnson, 3 Cal.3d 937, 948 {Tobriner, I.}. ) Thus, in-a recent case involving- the constitutionality of a municipal trespass ordinance, we stated that “iti order .. . to save the constitutional- ity of [the ordinance|,.we must construe it to ehcom- . — pass both the protection of the” property owner’s legiti- -" mgte interest. in preventing physical interference with © the business use. disturbances of the peace . . . or physi- - "cal obstruction of the premises . . . as well as the pres- - ervation of ‘an effective place for the dissemination. of _ Aideas.’ [Citation.|” (In re Cox, 3 Cal.3d 205, : 223 i= [ Tobriner, ae ' a In the ‘instant case, Ahe majofity opinion facilely _ ignores the foregoing principles and declares City’s anti-litter ordinance ureonstitutional “on its face.” In ‘\ my view, we must (as in Cox, supra). construe that ordinance to encompass both the legitimate anti-litter objectives of the city and private property owner as well as the preservation of First Amendment rights. As so construed, the ordinance is valid and enforceable. The majority claim that_City’s ordinance constitutes . an “extensive interference” with the. distribution of “pro- - “tected” material, instead of being “aimed specifically at those who litfer,” To the contrary, properly con- Strued to save its constitutionatity.: the ordinance is ‘re- ; —19— stricted ‘solely to those who litter, for it forbids only" that distribution, scattering. etc., which .occurs in pri- - vate yards, ¢ grounds, - porches, doorsteps, BORE hall- ways, vacant lots or other private property, without’. the owner's prior consent, By its terms, the ordinance, - would permit the direct distribution of. “protected” or other material to any householder cons@nting to reeeive ~ it, for the ordinance only applies to those “distributions” made “without ‘having ‘first obtained permission. ... .”. Thus, nothing in the ordinance would prevent ‘the dis- tributor from announcing his presence and offering his . handouts to the -householder. team . _ The cases cited by the “majority indicate that an _ ordinance . could not. properly - -forbid person- 1o-persei : distribution on .private property of protected material?” such as religious ¢racts or political pamphlets. “(See Schneider v. StateX308 U.S. 147, 164; Martin’v. Struth- ers, 319 US. 141, 145-146.) These -cases, however, 3 would . not bar a municipality from prohibiting the. dis- tribution of such material by scattering it: on private , grounds or leaving it on one’s doorstep where. by its very presence, it could cause a serious litter problem as well as constituting an open invitation to burglary. But even were we to conclude that these intrusions upon the private householder were justified by some j need to afford the ‘distributor of protected materials an uninvited access to private premises, we could none-- - theless: reasonably construe City’s ordinance as applying " ~ only to nonprotected, commercial material. thereby saving the constitutionality of the ordinance in its most common application. —20— ae fp The authorities uniformly. recognize that commercial | - soliciting or advertising may be regulated by ordinances of the type involved herein. (Breard v. City of Alexan- dria, La., 341.U.6. 622, 641-642: Schnéider v. State, supra, 308 U.S. 147, 165.) Accordingly, it has been noted that. “Ordinances prohibiting the distribution, throwing or casting of handbills. circulars, cards or other, advertising matter upon streets and public places have been construed: as applying only to Commeréial ”. and business advertising matter... .” (7 McQuillan, | :) .Municipal Corporations, § 24.446, at. pp. 430-431, citing cases. ) City’s ordinanee could -Teasonably: be. so construed. | - ye at, ae “te \ The majority accuse City’s ordifiance of exhibiting . _ the vice.of “overbreadth,”:a common form of legislative overreaction ‘to the solution of a problem. Ironically, | the majority, by. declaring the ordinance invalid on its, face without considering the Teasonable alternative con- structions which I hate proposed, have “Overreacted in a similar’ manner. Accordingly. I respectfully dissent from their opinion. vA s P e Bene) ee a, ie: i coficur: “= Nee ae ; as McComb, J. ait ed Pr \ er yess, | Sena > APPENDIX | B. Opinion of the Court of Appeal. In the Court of Appeal of the State of California,’ ‘Second Appellate District, Division: Two. ae Van Nuys Publishing Compaiy,. ‘Incorporated, Plaintiff and Appellant,’ vs. The City 6f Thou- ~ hance ts ten broads consgicted and includes withir its os “scope. activities which cannot constitutionally be rege. * ulated. For reasons heremaffer noted we conclude that the stated PUFPse of Ordinance No. 98 ik both ¢¢ viti- mate’ and sebetaptial and ts not “pursued -by- means * e ~ -©-. - - throughou oo 4—24— . that “broadly stifle fundamental personal. lierties.” (Shelton vo Fucker, 364 UX. 479, 488.) ; ‘The reported opinions of © the si appellate courts this country contain a chronicte of numer- ous and cotorfal conflicts between municipal authori- ties and persons Who contended that legislative enact- ements of the Municipalities impinged upon their Vart- ous copstitutional freedoms. We are alled upon losxamine once again thie’ ques- tion of whether the .actions of a ‘municipal legislative body in seeking. to protect its constituency against con- duct whieh is ‘apparently ‘offensive to a anajorny” has overstepped constitutional boundaries. * We agfee with the trial judge in the instant case that the result reached in J#i Lorenco. supra, and the rationale supporting *it are dispositive of the issue of municipal regulatjén of Publisher's activities. | ‘The express purpose of Section 4 of the ordinance as to alleviate acts: which were, ‘determined by. City to constitute a public nuisance to’ “communities within -the Cjty and a considerable ‘number ‘of citizens . . ‘In Di Lorenzo v. City of Pacific Grove. supra, ‘(where a similarly: worded * ordinance was held not vielative of any constitutional provision ) the City of: Pacific “Grove indicated its reason for enacting the ordinahce. Was the-need to- prevent newspapers and ad- vertising material from collecting on residential prop- erty..The ordinance’s specific purpose was fo protect — residents who are unaware that such material was go- ing to be thrown on their property and who “are unable ‘to make. proper _ Provisions for the Stopping of such deliveries. The City of Pacific Grove determined. that - such an ordinance; wis. a reasonable: regulation neéces- sary to prevent burglaries which directly resulted from the notice of the absence of the owner provided to - criminals by the uccumilation of- ,Uticollected news- Papers. In.-other words, . the City of Pacific Grove ; “sought bt prevent, burglaries. and the City of Thousand Oaks.seeks to prevent ‘litter, . : It is clear that while each city selected a different goul to be. achieved by its ordinance, * enfdrcemtt _ Of either ordinance serves both goals*and either stated “objective is. a “proper | fatter for the exercise of the Municipal police power: * On the other hand, if an ordinanec is constitutiomal- ly deféctive the Stated” purpose of -the- City Council. however praiseworthy, would nof save it. *. The crucial issue before- this court is whether Ordi- nance No. 98 wrongfully prohibits activity which enjoys a preferred. status under both the United States and- California Constitutions. The - ‘Supreme Court “has characterized the freedom of speech and that of’ the press as furidamental personal rights and_ liberties?”- (Schneider v. Irvington, 308 U.S. 147. 161.) (See also e Jonge v. Oregan, 299 ik Sass Lovell ve City of _ Griffin, 303 U.S. 444. 450: Gitlow: Vew York. 268 OS, 652.) -; + ee, Tg AD oe The. court in Schneider, supra, at. 161; . gbeenen ‘the importance of preventing the restriction of enjoy-. ment of these liberties. The court therein \ ‘Set out the following constitutional, admanigon concerning kgisla-’- tive regulation of speech or thé press: “In every case . where legislative’ abridgment\of the rights ¥g tg assert ‘ed. the courts shoyld be astute to examine the eect of. e - the challenged legiMlation. Mere _ Legislative prefe ences - - . o. * ee oC, or Beliefs reipecting matters of public’ convenience 1 may well support regulation directed at_ other personal actiwties, but be insufficent to justify such as diminish- ” ts the exercise of .cights so vital to the maintenance of democratic insfitutions. And-s6, as cases arise, the deli- cate and difficult task falls upon the ‘Courts to weigh the cireymstances- and to.appraise the substaniiality of the reason advanced in support of the regulation of the free enjoyment of the: rights.” (See also Martin v. _ Struthers, 310 YS. 141.144.) eee Although freedom of speech and” press are preferred rights which enjoy special constitutional protection, stich pretgction will not deter reasonable and necessary regulation ‘of such activities when it is shown that the purpose and effect of -the tegalation ‘substantially out- weighs the imipingement on the exercise of ‘these free- doms. (See WW ‘ollain vo Ci ity a Palnr Springs, 39 Cal.2d 276, 285.) Say ae Publisher correctly notes that its right to distribute ‘ and the homeowner's righe to receive Publisher's papers are-firmly enibraced by the constitutiqnal protection of ¢ sspeech and press and therefore Publisher’s activities are deserving of * thé same protection. afforded “pure peech.” (Martin, supra, at 143:) Accordingly, Pub- 7 Seles contends that the Section 4 requirement of ob- > taining advance approval from, the -houscholder for the ‘distribution of its newspapers : irectly abridges its right © to free speech and press in. that the ordinairee is an over-reaching and onerous requirement which would in effect make it impossible for it to distribute its product. It contends that the cost of ‘third-class_ mail is pro- - hibitive and that the ordinance in effect requires, that _ Prior to every delivery snk newsboy would have to re- ” A) ve. * S bad * tention is. predicated on the. fact that. the ordinance does -not stite that once approval by the householder iS given, it is good until revoked. . - An enaciment of a legisiative body carries with it a presumption of constitutionality. (See Corning Hospital _ Dist. v. .Superior Court, 537 Caf.2d “488; 496: Jersey ques} permission to deliver the paper. This latter con: -. Maid Milk Products Co. v. Brock, 13 Cal.2¢ 6207 ~ 426:) In, applying that presumption the.-courts are obliged to give. to. the legislation, an_ interpretation which is reasonable and which will if possible support the constifutional presumption. (/n re Cregler, 56 Cal. 2d 308, 310: Warner v. Keniiy, 27 Cal.2d 627, 629.) it seems apparent to us that dnce having obtained an approval from a houselfolder, the Publisher would not, be required to obtain that approval on eack and every delivery. We do not accept the Publisher's: unreason- able interpre tation of the ordinance. The Publisher suggests also that the City’ could achieve its objective by placing the burden on the homeowner to notify the paper “to stop’ distribution rather than. tinreasonably; burdening the Pyblicheg With” secking prior consent : The trial court, however. found that in occasional , cases: residents of the City have .requested thatethe un- . solicited tn, Publisher's newspaper be dis« - ough in some instances distribu-'. continued and that.a tion may be discontinued. subsequently and without request. the newspaper was again distributed in spite _of- the resident's request. that Publisher discontinue tHe ; distribution. Pubfisher’s suggested alternative then has apparently been trict! and found unsatisfactory, ~~ is —2§— os ° eo . e = Beyond that, however, if the device adopted by the City to comtrol the problem is constitutionally _permis- sible it Will not be rejected by the courts simply be- cause there is an equally effective alterni tive available. The -City Council is entrusted by thé citizens. , with ‘the power ¢o deaf with the myriad of problems which arise: in- the municipalii,” The determination’ of the Council as to how to deal with these problems should _ not be interfered with by the court unie ss it Is clearly and . patently unconstitutional. : - It is difficult io ‘accept Publisher’ s contention that the impact of this ordmance’ will have such a devastatihg effect pon, its ‘ability to disseminate- the. newspaper when it ‘admits in .the pleadings that it already dis- tributes some of the newspapers on’ subscriptién con- tractinthe area) © -\ | . Prior cases which have dealt with this general prob- lem area contain a discernible common theme. In Di _ Lorenzo, at page 74. the court said: “In determining / First Amendment rights -a distinction is to, bé Wade be- -tween comm snications transmitted to’ willing j and’ messages forced ni who ‘do not fish to re: | ceive them. Martin v. Struthers, .supra, pp. comments upon the right to transmit information -as follows: : ‘Freedom to. distribute infornjation - to every citizen wherever he desires to receive ii is so clearly vital to preservation of a freé society that. putting aside reasonable police and health regulations of time and -manner .of distribution, it must be fully _préserved.’ ” (Emphasis added. )%* , sf aie | Kovacs v. Cooper, 336 U. S. 77.°87,. makes the same distinctién thusly: — right of free si 1s guaran- . - - teed every citizen, that he may reach the minds of wing listeness and to dé So the re must be opportunity ° to win their attention.’ * . nies any person. the right to“. . . throw, cast, distribute, be scatter, deposit, pass out; give away, circulate, or: de- on : . liver - ° rashes :We concur:: - re = | . Out duly in this maiter is not to pass upon the. wisdom or desirability of the. ordinance -which the City has: enacted. We must .confiné- our attention to ‘the question of- ‘whether or not the legisKative, body for the City has the constitutional power to do what it has done. We con¢lude that City has the power to and does through its ordinance constitutierally regulate activities . deemed by it 'to-be a’public nuisance. as =F . — For a consideration of the purpose, ‘effect’ and Cir- “cumstances surrounding the. application of: the ordi- Herndon. Acting m: : i - Fleming, .J. a> > * ’ aa Py te ee —34— A APPENDIX: e. : Findings of Fact and Conclusions of Law and alaniand, Superior Court of the State of California, for the County of Ventura. . = @ ; The Van Nuys. Publishing Seana) Inc., a Cali- fornia corporation, Plaintiff, vs. The. Ci ity of Thousand Oaks, et al., Defendants. No. 49834. FILED: July 9, 1969. After trial on September 15, 1968, duting: ‘which oral’ and documentary. evidence was introduced by. plaintiff and -defendant, “City of Thousand Oaks, and defendant's subsequent motion for a new trial “and upon orak argument the Court set aside its ruling and reopened the case for~further: proceedings and. after — submitting points and authorities | ‘the cause was. again submitted. ‘The Court having considered the matter. now makes _ its findings, conclusion ‘and judgment as follows: te a . an , FINDINGS OF FACT ~ . 1. That all the allegations of paragraphs I, II, 1V, V, VI, VII and IX. of the complaint are true. - 2. That the allegations of paragraphs Ill, X, XI, XII, XII, XIV and XV of the. complaint are not true. ned 3. That the allegations of paragraph VII of the -somaincare a true in that in-occasional cases resi- dents of-the City~of Thousand Oaks have requested that * -the unsolicited distribution of -plaintiff's newspaper be discontinued and that although in some instances dis- - tribution: may -be discontinued, subsequently and with- sand Oaks, constituted a public nuisance. out request the newspaper was again distributed in. spite of the residents’ request that plainuff discontinue | the distribution. es “That the pe. of winsolicited newspapers on ole property, i.e., the streets of the City of Thou- 5. - That defendant, City: of Thousand Oaks, is en- ~ fitled to a declaration of ‘this court declaring | Ordinance No. 98 to be constitutional, . Il. CONCLUSIONS OF LAW - l. Thit Ordinance No. 98 of the City of Thou- sand Oaks does not deprive plaintiff of its property with- out due process of law, does not deny. to plaintiff the equal protection of the law of ‘the United States and the State“Of California’ and does not deprive plaintiff of ‘its right-of freedom of speech and is constitutional in general and as applied to plaintiff in the City. of Thousand Oaks under. the facts of this case. 2. That Ordinance. No. 98 of the: City of Thousand Oaks in general and as apptied to plaintiff under the | facts of this case is not in violation of the First Amend- ment of the United States Constitution, California . Constitution and general laws of the ‘State- of. Cali- fornia and is, constitutional in general and as applied to plaintiffs newspaper in the City of Thousand Oaks. 3. That Sections 2, 3 and 4 of Ordinance No. 93 of the City of Thousand Gaks in general and as | it applies to plaintiff under the facts of this case are not in violation of the First+ Amendment of thé United | ‘ States Constitution, the California Constitution and + tir tS ate de AE o S86, general laws of the State of California and are consti- . tutional as applied to plaintiff's S lt in the City of Thousand Oaks. 4, That defendant; City of — Oaks, its Of-: ficers, agents, Servants and employees, shall not be erfjoined from enforcing or attempting to enforce Or- dinance No: 98 against plaintiff. | | i | JUDGMENT | IT IS ORDERED, ADJUDGED AND DECREED: k, That plaintiff take nothing by its-complaint. | 2. That,Ordinance No. 98 of the City of Thousand Oaks is constitutional in general and as applied to plaintiff. 3. That Ordinance No. 98 of the City of Thow- sand Oaks is valid and enforceable. . 4. That each party shall bear ,and pay its own costs ; of suit herein incurred. Dated: July 9, 1969. /s/ Richard C. Heaton RICHARD C. HEATON Judge of the Superior Court Se tS APPENDIX D. . Order Denying Rehearing. Order Due « : November 17, 1971 In the Supreme Court af the State. of ree, In Bank. L.A. No. 29866. | The Van Nuys Publishing Company, Inc. v. City of Thousand Oaks, et | : FILED: Nov. 17, 1971. | Respondent's petition for rehearing DENIED. aon ere SEIS epee et eS ; OS iS fi McComb, J.,’and Burke, J., are of the opinion that the petition should be granted. es . /s/ Wright ee _. Chief Justice --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0543%3A1. Public record. Not legal advice.