Opinion
Opinions and (Welton v. City of Los Angeles) on pages 796-808 omitted.
HEARINGS GRANTED
For Opinion on Hearing, see 134 Cal.Rptr. 668, 556 P.2d 1119.
[124 Cal.Rptr. 481]Donald Low and Jonathan K. Golden, Beverly Hills, for plaintiff and appellant.
Burt Pines, City Atty., Ward G. McConnell, Chief, App.Div., and Gerry L. Ensley, Deputy City Atty., for defendants and respondents.
COBEY, Associate Justice.
Plaintiff, Vivienne Welton, appeals from a summary judgment entered in favor of defendants, City of Los Angeles, Edward M. Davis, as Chief of Police of defendant City, and the City Police Department, declaring Los Angeles Municipal Code, section 42.00, subdivisions (b) and (e), fully constitutional on their face, when construed to exclude therefrom all noncommercial activities protected by the First Amendment to the United States Constitution and as applied to plaintiff's activities-- [124 Cal.Rptr. 482] --the advertising, offering for sale and sale of 'movie maps' on municipal streets and parkways. The appeal lies. (See Code, Civ.Proc. § 437c.)
Plaintiff's appeal is actually from the order granting plaintiff's motion for summary judgment, a non-appealable order. In the interest of economy of judicial time, however, we will treat it as instead being from the appealable summary judgment for defendants thereafter entered. (See Code, Civ.Proc., § 437c.) Plaintiff's action sought injunctive and declaratory relief. The trial court denied her motion for summary judgment and granted that of defendants.
Briefly stated, the challenged provisions of the municipal ordinance prohibit absolutely selling and related activities on the streets, parkways and sidewalks of defendant City with respect to goods, wares and merchandise except for certain of such activities regarding Veterans' poppies, etc. and the sales of news publications. As just indicated, the trial court broadened these rather specific exceptions to include all 'non-commercial, First Amendment protected activities.'
Los Angeles Municipal Code, section 42.00, subdivision (b) (Ordinance No. 145,691), reads:
It is clear that plaintiff's activities of advertising, offering for sale and selling 'movie maps' on a parkway of a certain city street are in violation of the challenged ordinance. It is equally clear, though, that the ordinance, as written, was unconstitutionally overbroad since it prohibited, among other things, the selling on city streets, parkways and sidewalks [124 Cal.Rptr. 483] of non-commercial material protected by the First Amendment to the United States Constitution. (See Van Nuys Pub. Co. v. City of Thousand Oaks, 5 Cal.3d 817, 819-822, 97 Cal.Rptr. 777, cert. denied 405 U.S. 1042, 92 S.Ct. 1317, 31 L.Ed.2d 583; Young v. Municipal Court, 16 Cal.App.3d 766, 768-771, 94 Cal.Rptr. 331.) The question before us is whether the ordinance, as construed by the trial court, is now sufficiently narrow and certain in its coverage to be both constitutional on its face and as applied to plaintiff.
Since 1936 plaintiff's family, and most recently plaintiff, have engaged in the business of selling printed, copyrighted and quarterly revised 'movie maps'--that is, maps showing the locations primarily of the homes (past and present) of Hollywood movie and television stars. She uses signs placed on Sunset Boulevard, a principal Los Angeles thoroughfare, and in cars parked for that purpose near Sunset Boulevard to advertise her maps and her selling location just off the boulevard.
Where an enactment is attacked on First Amendment grounds, the court may examine not only its application in the case before the court, but also its possible application otherwise. (Young v. Municipal Court, supra, 16 Cal.App.3d at p. 771, 94 Cal.Rptr. 331.)
As judicially construed, the ordinance prohibits generally the selling of purely commercial material and related activities on the streets, parkways and sidewalks of the city. Such a prohibition does not violate the First Amendment to the United States Constitution. For over a generation at least, the High Court has recognized that the dissemination of purely commercial speech is beyond the protection of that Amendment. (See Valentine v. Chrestensen (1942) 316 U.S. 52, 54, 62 S.Ct. 920, 86 L.Ed. 1262, 1265; Breard v. alexandria (1951) 341 U.S. 622, 642, 71 S.Ct. 920, 932, 95 L.Ed. 1233, 1248; Pittsburgh Press Co. v. Human Rela. Comm. (1973) 413 U.S. 376, 384-388, 93 S.Ct. 2553, 2560, 37 L.Ed.2d 669, 676-678.)
We hold that plaintiff's advertising, offers to sell and selling of her 'movie maps' constitute the dissemination of a form of purely commercial speech. True, the maps contain some information, but this attribute in and of itself does not make the activity a protected one. Generally, commercial advertising and material are informative to some degree, but to gain the protection of the First Amendment over its dissemination, commercial speech must contain (in good faith) at least some information or opinion on sociological, educational, religious, economic or political matters--generally the kind of discourse upon public questions the founding fathers sought to protect as fundamental to the effective functioning of participatory democracy. (See Bigelow v. Virginia (1975) ---- U.S. ----,-----, 95 S.Ct. 2222, --------- 44 L.Ed.2d 600, 609-612; New York Times Co. v. Sullivan (1964) 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686, 698; Murdock v. Pennsylvania (1943) 319 U.S. 105, 110, 63 S.Ct. 870, 873, 87 L.Ed. 1292, 1297; Belli v. State Bar, 10 Cal.3d 824, 831-832, 840, 112 Cal.Rptr. 527, 519 P.2d 575; National Delivery Systems, Inc. v. City of Inglewood, 43 Cal.App.3d 573, 576-577, 117 Cal.Rptr. 791; San Francisco Street Artists Guild v. Scott, 37 Cal.App.3d 667, 669-672, 112 Cal.Rptr. 502. Plaintiff's 'movie maps' contain no such information. Plaintiff's advertising of them, offers to sell them and sales of them involve purely commercial propositions and transactions. Her speech is merely the means to accomplish a purely commercial transaction--namely, the sale of her maps. (Cf. In re Porterfield, 28 Cal.2d 91, 101, 168 P.2d 706.) Her activities are therefore not within the protection of the First Amendment and are properly proscribed by the challenged ordinance.
We do not agree with the following conclusion in Hodges v. Fitle (D.Neb.1971) 332 F.Supp. 504, 509: 'If the activity classified as speech is conducted to communicate information or disseminate opinion, it is offered the fullest protection of the First Amendment.'
Subject to First Amendment limitations, a municipality may, in the exercise of its police power, regulate appropriately conduct on its streets, sidewalks and parkways. (See 7 McQuillan, Municipal Corporations, § 24.565 (3d ed. 1968).)
Plaintiff attacks both the propriety of the trial court's narrowing of the coverage of the ordinance and the constitutionality of the ordinance as narrowed. There is no merit to her first ground of attack. Courts may, and do, narrowly construe overbroad penal legislation either to remove doubts as to the constitutionality of that legislation or to render the legislation constitutional. (See Braxton v. Municipal Court, 10 Cal.3d 138, 145-146, 109 Cal.Rptr. 897, 514 P.2d 697; In re Kay, 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142; cf. In re Edgar M., 14 Cal.3d 727, 736-737, 122 Cal.Rptr. 574, 537 P.2d 406).
We do not regard the narrowed ordinance as unconstitutionally vague in its application. Essentially it prohibits in its narrowed form (with the exception of the sale of poppies, etc. by veterans' organizations) the dissemination of purely commercial material on the defendant City's streets, parkways and sidewalks. It gives fair warning of the conduct which [124 Cal.Rptr. 484] it makes punishable as a crime. (See Keeler v. Superior Court, 2 Cal.3d 619, 633, 87 Cal.Rptr. 481, 470 P.2d 617.)
We perceive no constitutional equal protection problems with respect to the scope of the narrowed ordinance. The exemption of the sale of poppies, etc. by veterans' organizations avoids a preemption problem.
The summary judgment for defendants is affirmed.
ALLPORT, Acting P. J., and POTTER, J., concur.
'No person, except as otherwise provided in subsections (e) and (j) of this section, shall on any street offer for sale, solicit the sale of, announce by any means the availability of, or have in his possession, control or custody, whether upon his person or upon some other animate or inanimate object, any goods, wares, or merchandise which the public may purchase at any time. This subsection shall not apply to the sale of poppies, badges, and labels as defined by Military and Veterans Code Section 1800 on a parkway or sidewalk by persons bearing a valid information card issued pursuant to Article 4 of this Chapter authorizing him to do so.'
Section 42.00, subdivision (e)(1), reads in pertinent part:
'No person shall sell or offer for sale any newspaper, magazine, periodical, news publication or other printed matter while upon the roadway of any street within the City of Los Angeles provided, however, that persons engaged in selling or offering for sale or disposing of newspapers, news periodicals or other news publications may sell, offer for sale, solicit the purchase of and advertise the same upon any portion of the sidewalk or parkway . . ..'
Section 42.00, subdivision (j), relating to temporary selling activities, etc., under permit from the City Board of Public Works, is not involved in this case.
'Street' under the ordinance includes, among other things, roadways, parkways, alleys and sidewalks. (§ 42.00, subd. (a).)
This ordinance is penal in nature. (Los Angeles Municipal Code, § 11.00, subd. (m).)