People v. Fogelson
People v. Fogelson
Concurring Opinion
I concur.
I agree with the majority that the city ordinance is fatally flawed on its face because it lacks standards to guide city functionaries in the issuance or rejection of permits to solicit funds on public property.
In concurring with the opinion, however, I emphasize that this defendant’s conduct is not impervious to reasonable restraint. Indeed, there was an element of fraud in his modus operandi. Defendant did not forthrightly solicit contributions to his religious order; to persons approached at the airport he purported to beg for alms to buy meals for needy children. On the stand, however, he conceded his actual intent was to sell books, the funds therefrom being appropriated not to needy children but to maintain his order’s preaching program. Nevertheless he was not charged with fraud or theft, but with violation of the municipal code section on solicitation, and thus we may consider only that offense.
If defendant was actually seeking aid for needy children, his conduct could be regulated or proscribed. It has been held that begging and soliciting for alms do not enjoy absolute constitutional protection. (Ulmer v. Municipal Court (1976) 55 Cal.App.3d 263, 266 [127 Cal.Rptr. 445].) And if he was selling literature for religious sustenance, his practices—as distinguished from his beliefs—are also subject to reasonable circumscription. (People v. Woody (1964) 61 Cal.2d 716, 718 [40 Cal.Rptr. 69, 394 P.2d 813].) As this court declared in Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 470 [171 P.2d 8], there is no question “that a person is free to hold whatever belief his conscience dictates, but when he translates his belief into action he may be required to conform to reasonable regulations which are applicable to all persons and are designed to accomplish a permissible objective.” The United States Supreme Court put it succinctly: religious liberty “embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.” (Cantwell v. Connecticut (1940) 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1217-1218, 60 S.Ct. 900, 128 A.L.R. 1352].) To the same view is Justice Traynor’s exhaustive opinion for this court in Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232 [163 P.2d 704].
Thus it is clear to me that while the instant municipal ordinance falters because of constitutional infirmity, it is not impossible for the city to reasonably regulate the public conduct of mendicants, including those
Clark, J., concurred.
Opinion of the Court
Opinion
Appellant, Henry M. Fogelson, was convicted by the court of a misdemeanor, soliciting contributions on public property without a permit, conduct which violated a Los Angeles ordinance.
I
The facts are not in dispute. Appellant belongs to the Hare Krishna faith, the tenets of which require its adherents to go to public places to distribute books and pamphlets containing the teachings of the faith. Persons, who accept this literature, are asked to make financial contributions to defray the expenses of publishing such materials and of carrying on other Hare Krishna activities.
A Los Angeles policeman testified that on July 10, 1974, he was on duty at the Los Angeles International Airport, a facility owned and
Following appellant’s conviction in the municipal court of violating the Los Angeles solicitation ordinance (see fn. 1, ante), the appellate department of the superior court reversed. Thereafter, the Court of Appeal transferred the case to itself on its own motion (Cal. Rules of Court, rule 62(a)) and affirmed the conviction. This court granted appellant’s petition for hearing. (Cal. Rules of Court, rule 28(a).)
II
Appellant’s principal contention is that the Los Angeles solicitation ordinance is facially invalid because it fails to provide any standards for granting or refusing permission to engage in solicitation, many forms of which are constitutionally protected conduct. In response, the city attorney argues that appellant’s own act of soliciting contributions was not protected conduct and, therefore, he may not challenge the facial validity of the ordinance.
Such review is permitted in these circumstances because case-by-case adjudication may not fully vindicate the constitutional rights at stake. The actual application of an overbroad ordinance is not its only vice; it may also have a substantial deterrent impact or “chilling effect” on the exercise of constitutional rights. Faced with a regulation that threatens to impose sanctions upon free speech or the free exercise of religion, significant numbers of persons may elect not to exercise those rights rather than undergo the rigors of litigation and the risk of eventual punishment. While it is crucial that persons not be punished for having exercised their rights of free speech and religion,* **
There can be little question that the ordinance challenged here lends itself to a substantial number of unconstitutional applications.5
The mere fact that the challenged ordinance attempts to regulate constitutionally protected speech and religious activity does not, of course, render it unconstitutional. Speech and religious exercise are not wholly exempt from controls. (Cantwell v. Connecticut, supra, 310 U.S. at pp. 303-304 [84 L.Ed. at pp. 1217-1218].) The state may, for example, reasonably regulate the time, place and manner of engaging in solicitation in public places. (Id., at p. 304 [84 L.Ed. at p. 1218]; see also Cox v. New Hampshire (1941) 312 U.S. 569 [85 L.Ed. 1049, 61 S.Ct. 762, 133 A.L.R. 1396].) The state may also reasonably and narrowly regulate solicitations in order to prevent fraud (see, e.g., Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232 [163 P.2d 704]) or to prevent undue harassment of passersby or interference with the business operations being conducted on the property (see, e.g., In re Hoffman (1967) 67
In applying this principle specifically to ordinances requiring the issuance of permits for the exercise of First Amendment rights, this court concluded that such ordinances “will not offend the Constitution if they regulate only the time, place, manner and duration [of such expression] and if they are fairly administered by officials within the range of narrowly limited discretion. On the other hand, any procedure which allows licensing officials wide or unbounded discretion in granting or denying permits is constitutionally infirm because it permits them to base their determination on the content of the ideas sought to be expressed.” (Dillon v. Municipal Court, supra, 4 Cal.3d at pp. 869-870; see also Dulaney v. Municipal Court, supra, 11 Cal.3d at p. 84.)
Numerous regulatory schemes governing the issuance of permits or licenses have been invalidated for failure to provide the licensing officials with the requisite definite, objective guidelines for issuing the licenses. Those measures which have been struck down include a vaguely worded notice ordinance regulating house-to-house canvassing and solicitation (Hynes v. Mayor of Oradell, supra, 425 U.S. 610); a vague licensing measure controlling similar solicitations (Schneider v. State, supra, 308 U.S. 147); a standardless permit system governing distribution of literature in public (Lovell v. Griffin, supra, 303 U.S. at p. 451 [82 L.Ed. at p. 953]); a standardless permit arrangement governing the posting of bills on utility poles (Dulaney v. Municipal Court, supra, 11 Cal.3d at p. 80); a standardless license requirement for book store operation (Perrine v. Municipal Court (1971) 5 Cal.3d 656, 662 [97 Cal.Rptr. 320, 488 P.2d 648]); a vague permit scheme governing motion picture projection (Burton v. Municipal Court, supra, 68 Cal.2d at
In the present case, Los Angeles Municipal Code section 42.14.1 contains absolutely no standards to guide licensing officials in exercising their discretion to grant or deny applications to solicit on city property.
Although this court strives to construe legislative enactments so as to bring them into line with constitutional requirements (see, e.g., Welton v. City of Los Angeles, supra, 18 Cal.3d at pp. 505-507), the sweeping and unfettered power conferred by this ordinance does not lend itself to such a limiting construction (see, e.g., Van Nuys Pub. Co. v. City of Thousand Oaks, supra, 5 Cal.3d at p. 828). Moreover, this court should not, and does not, undertake the essentially legislative task of specifying which of the legitimate municipal interests in regulating solicitation are to be included in permit conditions, nor how such conditions might be drafted. (See, e.g., United States v. Robel (1967) 389 U.S. 258, 267-268 [19 L.Ed.2d 508, 515-517, 88 S.Ct. 419].)
Having held the ordinance to be unconstitutional on its face, this court need not address the other contentions urged by the parties.
The judgment of conviction is reversed.
Tobriner, J., Richardson, J., Manuel, J., and Sullivan, J.,
Section 42.14.1 of the Los Angeles Municipal Code provides as follows: “No person shall seek, beg, or solicit custom, patronage, sales, alms or donations for himself or on behalf of any person in any manner or for any purpose in any building, or in or on any property or premises under the control of this City without the written permission of the head of the department having jurisdiction over the building or grounds where such solicitation is to be made. Where solicitation is to be made of employees of a department within the offices and spaces in public buildings assigned to that department, such solicitation is prohibited unless written permission is obtained from the head of the department.”
Appellant could not in fact have obtained a permit because, according to the testimony of a custodian of the business records of the airport board, the board “does not issue permits to individuals to solicit or peddle, by policy.”
There is no merit to the city attorney’s additional contention that appellant does not have standing to challenge the constitutionality of section 42.14.1 because he did not apply for a permit under that ordinance. “It is . . . settled that petitioners have standing to attack the constitutional validity of [an] ordinance which they are charged with having violated even though they have failed to allege that they attempted to comply with its permit requirement. (Dillon v. Municipal Court, supra, 4 Cal.3d 860, 866, fn. 6 [94 Cal.Rptr. 777, 484 P.2d 945], and cases collected therein; see also Burton v. Municipal Court, supra, 68 Cal.2d 684, 687-688 [68 Cal.Rptr. 721, 441 P.2d 281].) ‘Standing is
In order to deal promptly with allegedly overbroad regulatory schemes, this court has often entertained pretrial petitions for extraordinary relief from prosecutions based on such allegedly overbroad or otherwise facially invalid regulations. (E.g., Dulaney v. Municipal Court, supra, 11 Cal.3d at pp. 81-82.)
Moreover, the unpredictability of such case-by-case judicial evaluation of overbroad statutes “would inject an element of vagueness. . . . [Tjhe plain words would . . . become uncertain in meaning ... if courts proceeded on a case-by-case basis to separate out constitutional from unconstitutional areas of coverage.” (Aptheker v. Secretary of State (1964) 378 U.S. 500, 516 [12 L.Ed.2d 992, 1003, 84 S.Ct. 1659]; see also Note, The First Amendment Overbreadth Doctrine (1970) 83 Harv.L.Rev. 844, 871-872; Note, The Void-for-Vagueness Doctrine in the Supreme Court (1960) 109 U.Pa.L.Rev. 67.)
The city attorney contends that a facial overbreadth attack will not lie against the ordinance involved here because it does not “on its face purport to regulate First Amendment activity.” (See Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 72-73 [101 Cal.Rptr. 768, 496 P.2d 840].) This contention is not persuasive. The ordinance does in fact by its terms attempt to regulate virtually all forms of solicitation, many of which constitute First Amendment protected activity. (See discussion, infra.) Moreover, the test of a regulation’s overbreadth turns on the extent to which it lends itself to improper applications to protected conduct, not whether it explicitly refers to speech or religion. (See, e.g., Martin v. Struthers (1943) 319 U.S. 141 [87 L.Ed. 1313, 63 S.Ct. 862, 882] [striking down an ordinance prohibiting canvassers or solicitors from knocking on the front door of a resident’s home or ringing the doorbell]; see also Schneider v. Store (1939) 308 U.S. 147, 161 [84 L.Ed. 155, 164-165, 60 S.Ct. 146].)
Although “commercial speech” has not traditionally enjoyed constitutional protection, commercial solicitation or promotion of constitutionally protected written works is protected as an incident to the First Amendment value of the underlying speech or activity. Thus, this court recently held overbroad a Los Angeles ordinance banning sidewalk sales of “merchandise,” including most types of printed matter. (Welton v. City of Los Angeles (1976) 18 Cal.3d 497, 503-505 [134 Cal.Rptr. 668, 556 P.2d 1119]; see also New York Times Co. v. Sullivan (1964) 376 U.S. 254, 265-266 [11 L.Ed.2d 686, 697-698, 84 S.Ct. 710, 95 A.L.R.2d 1412] [paid newspaper advertisement soliciting funds for civil rights movement held protected]; Murdock v. Pennsylvania (1943) 319 U.S. 105, 111 [87 L.Ed. 1292, 1297-1298, 63 S.Ct. 870, 891, 146 A.L.R. 81] [petitioners’ activity protected even though they “sold” rather than “donated” their religious literature].)
Three recent decisions have enlarged the constitutional protection to be given to “commercial speech.” (Bates v. State Bar of Arizona (1977) 433 U.S. 350 [53 L.Ed.2d 810, 97 S.Ct. 2691]; Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748 [48 L.Ed.2d 346, 96 S.Ct. 1817]; Bigelow v. Virginia, supra, 421 U.S. 809; see Comment, First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine (1976) 44 U.Chi.L.Rev. 205.) These decisions suggest that even the distinctly commercial forms of solicitation covered by the ordinance at issue may be entitled to at least some constitutional protection.
However, it is important to recognize that individuals in public places cannot expect the same degree of protection from contact with others as they are entitled to in their own homes. “ ‘The man who goes ... to a public place must expect to meet and mingle with all classes of people. He cannot ask, to suit his caprice or prejudice or social views, that this or that man shall be excluded because he does not wish to associate with them.’ ” (In re Cox (1970) 3 Cal.3d 205, 224 [90 Cal.Rptr. 24, 474 P.2d 992], quoting Ferguson v. Gies (1890) 82 Mich. 358, 367-368 [46 N.W. 718].)
The ordinance appears to extend to city streets and parks, clearly First Amendment forums (see, e.g., Hague v. C. I. O. (1939) 307 U.S. 496, 515 [83 L.Ed. 1423, 1436, 59 S.Ct. 954]; Kunz v. New York (1951) 340 U.S. 290, 293 [95 L.Ed. 280, 283-284, 71 S.Ct. 312]), as well as to “public” areas in municipal buildings, which are also appropriate areas for exercise of protected activity (see In re Hoffman, supra, 67 Cal.2d at pp. 850-851).
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
Reference
- Full Case Name
- The PEOPLE, Plaintiff and Respondent, v. HENRY M. FOGELSON, Defendant and Appellant
- Cited By
- 50 cases
- Status
- Published