Court of Appeal, First District, Division 1, California.May 14, 1981120 Cal.App.3d 1173 Cal.Rptr. 781 (Approx. 10 pages)
120 Cal.App.3d 1
Court of Appeal, First District, Division 1, California.
Eugene SUSSLI, Plaintiff and Appellant,
v.
CITY OF SAN MATEO, a municipal corporation, et al., Defendants and Respondents.
Civ. 46085.
May 14, 1981.As Corrected June 9, 1981.Rehearing Denied June 12, 1981.Hearing Denied July 8, 1981.
Attorneys and Law Firms
*3**781 Pettit & Martin, Neil H. O'Donnell, San Francisco, for plaintiff and appellant.
Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, San Francisco, for American Civil Liberties Union.
**782 Maurice K. Hamilton, City Atty., Lyle L. Lopus, Asst. City Atty., San Mateo, for defendants and respondents.
John M. Powers, City Atty., Vallejo, amicus curiae for City of Vallejo.
William R. Galstan, City Atty., Antioch, amicus curiae for City of Antioch.
Opinion
NEWSOM, Associate Justice.
Appellant Eugene Sussli was a candidate for the San Mateo City Council in an election held on March 8, 1977. Prior to the election, campaign signs supporting the candidacy of appellant and the re-election of another candidate, John Condon, were posted on public property within the city. On February 8, 1977, the city attorney sent a letter to all candidates, including Sussli, informing them that sign posting on public property was prohibited by local ordinance No. 25.04.090, reproduced verbatim in the margin,1 and requesting that all such campaign signs be removed no later than the following week under threat of summary removal by city officials. The letter also advised that under applicable ordinance provisions, sign posting on private property was permissible with the consent of the owner of the property. A copy of the ordinance regulating the time, manner and placement of an “election sign” was included with the written notification.2
*4 When the candidates refused to comply with the written request, city personnel undertook removal of the offending signs, resulting in the institution of suit for injunctive and declaratory relief. At the conclusion of the hearing the trial court made its decision upholding the ordinance prohibiting the posting of campaign signs on all public property with its attendant sanction of summary removal. Following the adoption of written findings and conclusions and entry of formal judgment, candidate Sussli instituted this appeal.3
The principal theory of the complaint is that the challenged ordinance constitutes an impermissible abridgement of the right of free speech guaranteed under the provisions of the federal and state constitutions.4 Respondents denied the charging allegations and affirmatively alleged that the ordinance was justified on the grounds of overriding governmental interests.5
On appeal, while conceding that the right to erect or post signs on public property is subject to reasonable regulations for legitimate governmental purposes, Sussli asserts **783 that the absolute ban imposed by the ordinance of a protected First Amendment interest is constitutionally defective on its face. Moreover, he argues, the governmental interests advanced cannot justify what amounts to an overbroad restriction on the right of free speech.
Respondents counter that the uniform imposition of the prohibition against sign posting on any public property does not represent an unlawful *5 intrusion into traditional forums for protectible First Amendment activities. Alternatively, with heavy reliance placed upon the relevant criteria announced in Baldwin v. Redwood City (9 Cir. 1976) 540 F.2d 1360, they argue that the governmental interests promoted by the ordinance as found below justify any incidental restriction imposed on the exercise of First Amendment rights.
The precise question presented characterized by the parties as whether a city may totally prohibit the posting of political signs on public property within the city is apparently one of first impression.6 The significance of that central issue is underscored in Amici's brief on behalf of 48 California cities who had ordinances similar to the ordinance under review.
Sussli's initial attack on the facial validity of the ordinance focuses upon the mode of expression as a form of protected speech which cannot be entirely banned from a traditional forum for the exercise of First Amendment rights. Thus, the argument continues, once First Amendment protection is extended to the means of communication such as sign posting, any legislative attempt to ban outright such protected medium of speech from the public forum is unconstitutional per se.
It is equally clear that the First Amendment interests involved in the display of political posters adjacent to public thoroughfares are substantial in nature. (Baldwin v. Redwood City, supra, 540 F.2d 1360, 1368.) As one distinguished commentator in the field of constitutional law has observed: **785 “Two variables have been important in structuring the balancing process, and in deciding how heavy a burden of justification *8 and how large a sacrifice of other goals to impose on government. The first has been the degree to which any given inhibition on communicative activity falls unevenly upon various groups in the society.... (P) The second variable has been the degree to which the inhibition on communicative activity operates to shut down places that have traditionally been associated with the public exchange of views ....” (Tribe, op. cit. supra, at pp. 683-684.) In relation to the latter consideration, the City of San Mateo strenuously argues that not only has political sign posting on public property never been extended constitutional protection under the doctrine of traditional forums, but such a claimed right has been expressly rejected in the only relevant reported decision. (See Brayton v. City of Anchorage, supra, 386 P.2d 832.) Moreover, the City asserts, the availability of private property-posting provides an adequate alternative forum for the exercise of the protected activity. (Cf. Young v. American Mini Theaters (1976) 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (plurality opinion by Stevens, J.).)
Certainly, the fact that “means of political communication are not entirely fungible; (and) political posters have unique advantages” (Baldwin v. Redwood City, supra, 540 F.2d 1360, 1368) should likewise be considered in the balancing process. As the state Supreme Court has noted in another context, “absent the presence of some conflicting *9 interest that could be protected in no other way, petitioners have the right to chose their own forum.” (In re Hoffman (1967) 67 Cal.2d 845, 852, fn. 7,64 Cal.Rptr. 97, 434 P.2d 353 (leafletting in public railroad station).)
As earlier stated, the resolution of this legal question requires a balancing process. In weighing the competing interests at stake, we attach special significance to the compelling interest of the public in maintaining some semblance of visual harmony in the areas where they live. Thousands of tattered derelict signs from past elections testify to the difficulty of protecting public property from unsightly signs even *10 where laws forbid public posting. Without such laws one foresees an absolute end to the already eroded aesthetic integrity of public places in a tidal wave of publicly sponsored graffiti.10
We find it difficult to understand how the legitimate purpose of preventing this inundation could be more “narrowly achieved” how local government can keep election placards from public poles on public property except by an ordinance prohibiting them.
A sometimes exception to this rule will obtain “where a provision restricting free speech and the free dissemination of ideas is involved,” in which case a court, in considering overbreadth or vagueness, “may take into account the operation of the provision as to factual situations other than the one at bar.” (Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 339, 38 Cal.Rptr. 625, 392 P.2d 385.) No constitutional duty, however, mandates invoking this exception where it is contrary to the express desire of the people of the cities of California to control the proliferation of urban clutter.
*11 In arriving at this conclusion, we would stress that those who follow in Sussli's footsteps will, like him, have available to them **787 innumerable modes of political expression in both private and public forums, including the unchallenable right to use public placed for traditional speech. To say that this is insufficient merely because it is incomplete, and that every man has at all times an unabridgable right to use every possible means of expression irrespective of any legitimate countervailing public interest, seems to us erroneous.
For these reasons we conclude that the trial court correctly concluded that the ordinance at issue is constitutionally permissible.
While considerations of public safety undoubtedly warrant the imposition of reasonable restrictions, the city could easily achieve such an objective by a more narrowly drawn ordinance relating to public placement of temporary political signs.2 Nor will aesthetic considerations alone justify unrestricted intrusion into constitutionally protected areas. (See Van Nuys Pub. Co. v. City of Thousand Oaks (1971) 5 Cal.3d 817, 822, 97 Cal.Rptr. 777, 489 P.2d 809.) Any offensive blare and bombardment of political propaganda may be readily muted simply by looking away. (See Cohen v. California (1971) 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284.) Further, the administrative burdens associated with the supervision of public sign posting and removal of offending signs may be accomplished by alternate and substantially less restrictive means which even if not entirely successful would impose a minimal burden **788 at best (Baldwin v. Redwood City (9 Cir. 1976) 540 F.2d 1360, 1370) and but “a small price to pay for preservation of ... (a) ... most cherished right.” (Wirta v. Alameda-Contra Costa Transit Dist. (1967) 68 Cal.2d 51, 62, 64 Cal.Rptr. 430, 434 P.2d 982.) Thus, although the nature of the interests advanced may justify suitable restrictions on the time, place and manner of political expression, nonetheless such objectives must be achieved in a less broadly restrictive fashion. The challenged provisions fail to comply with that basic limitation.
In a democratic society the right of free expression occupies a most preferred position (see Burton v. Municipal Court (1968) 68 Cal.2d 684, 690-691, 68 Cal.Rptr. 721, 441 P.2d 281), secure from overreaching governmental regulations. Free expression of political thought *13 and political choice should always be worth more to a free society than its costs. Contrary to the dismal scenario set in the majority opinion, it is much more rational to believe that carefully crafted regulations accommodating basic constitutional rights can be implemented to ward off the specter of environmental blight and the sea of scribblings graphically predicted in that gloomy forecast.
In its effort to balance the competing interests involved, the majority strikes a devastating blow to a long established method of political expression utilizing a medium which often as Marshall McLuhan admonishes is the message itself.
Section 25.04.090 reads as follows: “POSTING ON PUBLIC PROPERTY PROHIBITED. No person, except a duly authorized public officer or employee, shall erect, construct or maintain, paste, paint, print, nail, tack or otherwise fasten or affix, any card, banner, handbill, campaign sign, poster, sign, advertisement, or notice of any kind, or cause or suffer the same to be done, on any curbstone, lamppost, pole, bench, hydrant, bridge, wall, tree, sidewalk or structure in or upon any public street, alley, or upon any other public property, except as may be required or permitted by ordinance or law; no person shall deface, mar or disfigure any bridge, fence, building or other structure belonging to city, or any tree located in any public property or place, by painting, cutting, scratching or breaking the same, or attaching or affixing anything thereto.”
Under the provisions of the ordinance (s 25.12.130) only peripherally involved herein the placement of an election or temporary sign on private property is authorized upon the issuance of a city permit, pursuant to conditions requiring the owner's consent and placement and removal no earlier than six weeks before and ten days after the election date, respectively. Issuance of the permit is further conditioned upon payment of a refundable $25 deposit, subject to forfeiture in the event of noncompliance with the removal condition.
Unless the context of our discussion indicates otherwise, reference to First Amendment rights is intended to include the similar guaranty under California Constitution article I, section 2.
The public interests to be served were enumerated as follows: 1) prevention of damage to public property; 2) preservation of public confidence in the neutrality of elections; 3) protection of the public from the blare of political propaganda; 4) avoidance of administrative burdens associated with the need to monitor the placement of signs on public property and their eventual removal; 5) preservation of the prominence of public signs and lines of sight in the interests of traffic safety; and aesthetic considerations. The trial court expressly found that in light of the permissible posting of election signs on private property, all of such interests were substantial in relation to the incidental restriction imposed on public property sign posting as a means of expression.
Where, as here, the regulatory provision is content-neutral requiring a case by case balancing approach, the use of the term “incidental” is to be considered as describing a resulting purpose and effect. That is to say, the causal effect of whatever magnitude on the protected activity must be merely incidental to the legislative purpose as distinguished from “insubstantial.” (Cf., e. g., Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 47-48, 157 Cal.Rptr. 855, 599 P.2d 46; see also Tribe, op. cit. supra, at pp. 602-603.) While we recognize that the scope of restrictions on free speech is an important factor to be considered in the weighing process (cf. Baldwin v. Redwood City, supra, 540 F.2d at pp. 1372-1373), a pivotal inquiry remains as to whether the governmental interests advanced are substantial in relation to the restrictions imposed since, as previously noted, every regulation in a sense amounts to a prohibition. Consequently, Sussli's insistent claim of total prohibition rather than incidental restriction is wide of the mark, especially when the ordinance does not purport to apply to temporary election signs posted on private property.
However, some pragmatic persuasion attaches to Sussli's hypothetical claim suggesting that even the use of alternative channels of communication such as media advertising or private property posting could be effectively foreclosed by reason of cost constraints or the very nature of the expression involved, e. g., proposed property tax increases or rent control issues.
The rational basis for differentiating between political signs relating to specific elections and those which pertain to the conduct of government in general seems tenuous at best. (Cf. Wirta v. Alameda-Contra Costa Transit Dist., supra, 68 Cal.3d 51, 64 Cal.Rptr. 430, 434 P.2d 982.) If the subject ordinance falls, it is difficult to rationalize a valid basis for prohibiting the public posting of signs ranging from “Question Authority” to “Save the Red Brigade” or “Down with the Shah.” It is, indeed, probable that the county could then be required to provide public space for any noncommercial message, such as “Roommate Desired” or “Merry Christmas.”
For example, section 25.12.130, subdivision (4), provides in pertinent part that election signs may not be placed “in such manner as to pose a visibility hazard to pedestrian and motor vehicle traffic along the public highway, sidewalks or at street corners.”