City of Eugene v. Miller

871 P.2d 454, 318 Or. 480, 1994 Ore. LEXIS 25

• Court: Oregon Supreme Court
• Decided: April 7, 1994
• Docket: CC 91-50062, 91-50073 CA A75143 (control), CA A75145 SC S40396
• Status: Published

Opinions

GILLETTE, J.

In these consolidated cases, defendant was convicted of violating Eugene Code section 4.860(d), one of the sidewalk vending ordinances of the Eugene city code,¹ by selling joke books on a city sidewalk. The Court of Appeals reversed the convictions, concluding that the Eugene sidewalk vending ordinance violated Article I, section 8, of the Oregon Constitution.² City of Eugene v. Miller, 119 Or App 293, 851 P2d 1142 (1993). Because we agree that the ordinance as applied to defendant’s activities violated defendant’s rights under Article I, section 8, we affirm the decision of the Court of Appeals, albeit on different grounds.

At all times relevant to these proceedings, the Eugene Code contained the following provisions related to sidewalk vending.³ Eugene Code section 4.860 prohibited certain activities on streets and sidewalks. Subsection (d) of that section provided:

“Unless otherwise authorized by this code, no person shall:

“(d) Set up or operate a vehicle, stand or place for the display or sale of merchandise, or sell, vend, or display for sale an article in the streets or on the sidewalks or in doorways or stairways of business houses, or in any other place where such activity causes congregation and congestion of people or vehicles on the streets or sidewalks.”

Eugene Code sections 3.336 to 3.342 established a scheme for the licensing of sidewalk vendors, thereby providing an exception to the prohibition in section 4.860(d).⁴ Section 3.338 imposed certain requirements on licensed vendors. One of those requirements, set out in section 3.338(e), was that vendors “[s]ell only the food, beverages, flowers or balloons designated on the license.”⁵ The sale of any other kind of merchandise, including books, was not authorized. According to the city, the purpose of the sidewalk vending scheme was “to reduce congestion, ensure public safety, promote business development by fostering a carnival-like atmosphere, lessen unfair competition and minimize city liability by restricting unlicensed commercial sales transactions on public sidewalks.”

On July 24, 1991, and again on August 13, 1991, defendant was cited for selling a joke book to a pedestrian on a sidewalk in Eugene in violation of Eugene Code section 4.860(d) (set out above). In the municipal court, and again on appeal in the district court, defendant argued that the limitation of licenses to vendors of food, beverages, flowers, and balloons violated various state and federal constitutional provisions, including the free speech guarantee of Article I, section 8, of the Oregon Constitution.⁶ The municipal and district courts rejected defendant’s constitutional claims and convicted him of both charges.

The Court of Appeals reversed the convictions. A five-member majority of that court concluded that the sidewalk vending ordinance violated Article I, section 8, because the ordinance was overbroad. City of Eugene v. Miller, supra, 119 Or App at 297-98. The majority also concluded that the ordinance was invalid as a “content-based regulation,” because “it regulates different exercises of the same commercial activity differently, on the basis of what is sold and communicated.” Id. at 299 (emphasis deleted). Three dissenting judges concluded that the ordinance did not violate Article I, section 8. Id. at 301-06 (Edmonds, J., dissenting).⁷ We allowed the city’s petition for review to address this important constitutional issue.

We first address a threshold issue regar ding appellate jurisdiction. In the Court of Appeals, the city argued that the court did not have jurisdiction, because defendant could not attack the constitutionality of Eugene Code section 3.338(e) on appeal from his convictions for violating section 4.860(d). See ORS 221.360 (allowing appeal from district court to Court of Appeals in cases “involving the constitutionality of the * * * ordinance under which the conviction was obtained”). The Court of Appeals concluded that it had jurisdiction in these cases under ORS 221.360, because section 3.338(e) “is in pari materia with the ordinance under which [defendant] was convicted.” City of Eugene v. Miller, supra, 119 Or App at 296. At oral argument before this court, the city again raised its jurisdictional argument. For the reason stated in that court’s opinion, we agree with the Court of Appeals that appellate jurisdiction is proper in these cases.

We turn to the central question in these cases — whether applying the prohibition in Eugene Code section 4.860(d) to defendant, while relieving certain other persons of the burden of that section under the terms of Eugene Code section 3.338(e), violates defendant’s right to free speech guaranteed by Article I, section 8.

Defendant first contends that the Eugene ordinance is invalid as a regulation directed at the “content” of speech, because the ordinance “allows the selling of some objects but not others.” Defendant also contends that the ordinance is unconstitutionally overbroad, because “the restriction based on the types of goods sold does nothing to further the stated purpose of the ordinance.”

In response, the city argues that the ordinance does not violate Article I, section 8, because the ordinance “regulates commerce, not speech.” That distinction is of questionable value, however, in view of this court’s recognition'that “[s]elling is a form of communicative behavior that includes speech” and that regulations on selling therefore implicate “speech.”⁸ City of Hillsboro v. Purcell, 306 Or 547, 555, 761 P2d 510 (1988).

The city attempts to distinguish Purcell by arguing that that case involved “solicitation” and that Eugene Code section 3.338(e) “does not presume to regulate solicitation.” Contrary to the city’s assertion, however, its ordinance does regulate solicitation⁹ and, under prior decisions of this court, a law that regulates solicitation implicates Article I, section 8. See Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993) (statute regulating use of automatic dialing and announcing devices to solicit purchase of real property, goods, or services held invalid under Article I, section 8); City of Hillsboro v. Purcell, supra, (ordinance criminalizing door-to-door solicitation held invalid under Article I, section 8).

Nevertheless, we need not decide whether applying to defendant the prohibition of Eugene Code section 4.860(d), as qualified by the exception in Eugene Code section 3.338(e), violates Article I, section 8, by impermissibly regulating “solicitation” or some other part of a sales transaction that might be characterized as “speech” subject to constitutional protection. Even assuming, arguendo, that the words of offer and acceptance in a sales transaction are not “speech” that is protected by Article I, section 8, we nonetheless conclude that the Eugene ordinance violates Article I, section 8, because, as applied to defendant, it unreasonably impinges on the dissemination of expressive material that is itself protected under Article I, section 8.

The city does not dispute that defendant’s joke books are expressive material. The city also does not dispute that expressive material may be protected as speech under Article I, section 8. See City of Hillsboro v. Purcell, supra, 306 Or at 555 (“[s]elling * * * may involve goods that are protected expression”); id. at 555 n 6 (“licensing may implicate speech rights if applied to the sale or distribution of products, such as newspapers and magazines, involving expression”). Finally, the city does not dispute that, by expressly permitting the sale of food, beverages, flowers, and balloons only, the operative combination of sections 4.860(d) and 3.338(e) limits the dissemination of expressive material such as defendant’s joke books.¹⁰ The city’s contention is that the limitation on the sale of expressive material is nonetheless valid, because “[ejxpressive material as a commodity, like any other commodity, is not exempt from content-neutral regulations.” According to the city, “the analysis in this case is the same whether the commodity involved is joke books or furniture.” In other words, the city contends that, so long as it does not distinguish among expressive material based on the material’s content, it may regulate the sale of expressive material like any other commodity. For the reasons that follow, we disagree.

The city is correct to the extent that it is arguing that expressive material is not exempt from all “content-neutral” regulation. As this court stated in City of Portland v. Tidyman, 306 Or 174, 182, 759 P2d 242 (1988):

“A grocery store gains no privilege against a zoning regulation by selling The National Enquirer and Globe at its checkout counter. The same applies to ‘adult businesses’ that sell other merchandise besides books, pictures or records. Even structures and activities unquestionably devoted to constitutionally privileged purposes such as religion or free expression are not immune from regulations imposed for reasons other than the substance of their particular message.”

Nevertheless, the principle that expressive material is not exempt from “content-neutral” regulation does not mean, as the city appears to contend, that expressive material may be subjected to any “content-neutral” regulation that the city wishes to impose. For instance, it is unlikely that the city could impose an outright ban on the sale and distribution of all expressive material within its city limits. Such a ban, though entirely neutral with regard to the “content” or “subject” of the expressive material, would be unlikely to withstand scrutiny under Article I, section 8, because it would restrict too greatly “the free expression of opinion” and “the right to speak, write, or print freely on any subj ect whatever. ’ ’ The city cannot evade scrutiny of its ordinance under Article I, section 8, merely by asserting that the ordinance is ‘ ‘content-neutral. ’ ’

The city also is wrong when it contends that “the analysis in this case is the same whether the commodity involved is joke books or furniture.” A limitation on the sale of furniture does not implicate the same free speech concerns that are implicated by a limitation on the sale of goods that are themselves protected as expression under Article I, section 8. That point is illustrated by the following passage from City of Portland v. Tidyman, supra, 306 Or at 182 (invalidating a city ordinance regulating “adult bookstores”):

“We note at the outset that the obstacle to the city’s distinction [between ‘adult’ businesses and other businesses] is not the constitutional guarantee of equal privileges and immunities, Article I, section 20, but the guarantee of free expression, Article I, section 8. If free expression within that guarantee were not involved, ‘adult’ businesses could not insist that they must be treated exactly like any other business, not, at least, without a showing of being singled out for an impermissible motive.”

(Footnotes omitted.) Tidyman establishes that, because limitations on the sale of expressive material involve free expression within the guarantee of Article I, section 8, such limitations are subject to scrutiny under that provision, even though similar limitations on other, nonexpressive material may not be.

Having concluded that the operation of Eugene Code sections 4.860(d) and 3.338(e) implicates Article I, section 8, because the ordinances have the effect of limiting the sale of expressive material such as defendant’s books, we must now determine whether that limitation violates Article I, section 8. In State v. Robertson, 293 Or 402, 649 P2d 669 (1982), this court established a basic framework for determining whether a law violates Article I, section 8. That framework recognizes three categories of laws, which this court summarized in State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992), cert den_US_, 113 S Ct 2967 (1993).

The first Robertson category consists of laws that “focus on the content of speech or writing” or are “ ‘written in terms directed to the substance of any “opinion” or any “subject” of communication.’ ” State v. Plowman, supra, 314 Or at 164 (quoting State v. Robertson, supra, 293 Or at 412) (emphasis in original). Laws within that category violate Article I, section 8, ‘ ‘unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.” State v. Robertson, supra, 293 Or at 412. The second Robertson category consists of laws that “focusO on forbidden effects, but expressly prohibit[] expression used to achieve those effects.” State v. Plowman, supra, 314 Or at 164. Laws in that category “are analyzed for overbreadth.” Ibid. Finally, the third Robertson category consists of laws that “focusG on forbidden effects, but without referring to expression at all.” Ibid. Laws within the third category are analyzed to determine whether they violate Article I, section 8, as applied. State v. Robertson, supra, 293 Or at 417.

The question thus becomes whether the prohibition in Eugene Code section 4.860(d), as qualified by the exception in Eugene Code section 3.338(e), fits within the Robertson framework and, if so, where. As noted above, defendant first argues that the combined effect of the two sections violates Article I, section 8, because it is a “content-based” restriction on speech. In Robertson terms, defendant’s argument is that the ordinances are invalid because they are written in terms directed at the “subject of communication” — i.e., the product sold. We disagree.

As we noted above, we assume, arguendo, that no part of the words of offer and acceptance in a sales transaction are “speech” protected by Article I, section 8. Given that assumption, a regulation on commercial activity is not invalid under Article I, section 8, as a “content-based” restriction simply because it distinguishes between types of products. For purposes of our analysis, the relevant “expression” that implicates the protection of Article I, section 8, is the expressive material that vendors like defendant are prohibited from selling on the sidewalks of Eugene under the ordinance. As the city points out, however, sections 4.860(d) and 3.338(e) are “content-neutral” with regard to their limitation on the sale of expressive material. It makes no difference, under the ordinances, whether a person is selling a joke book, a religious tract, or a political treatise. The ordinances limit, inter alia, the sale of all expressive material, regardless of its “subject” or “content.” For that reason, sections 4.860(d) and 3.338(e) are not, collectively, a law “written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication” and are not unconstitutional on that ground.

The next question is whether sections 4.860(d) and 3.338(e) fit within the second Robertson category, so that they must be examined for overbreadth. In making that determination, we first ask whether they collectively constitute a law that “ focus [es] on proscribing the pursuit or accomplishment of forbidden results rather than on the suppression of speech or writing either as an end in itself or as a means to some other legislative end.” State v. Robertson, supra, 293 Or at 416-17. Indeed, that requirement is common to both the second and third Robertson categories. Ibid. We conclude that the Eugene sidewalk vending ordinances are such a law. Here, the forbidden “result” or “effect” that the sidewalk vending ordinances focus on is congestion on city streets and sidewalks and the resulting danger to public safety. The sidewalk vending scheme also seeks to promote business development, lessen unfair competition, and minimize city liability. In seeking to accomplish those goals, the ordinances do not “focus * * * on the suppression of speech or writing”; therefore, they satisfy the threshold requirement of the second Robertson category.

The final question, under the Robertson framework, is whether the Eugene sidewalk vending ordinances are a law that expressly prohibits expression to achieve the forbidden effects or, instead, are a law that does not refer to expression at all. State v. Plowman, supra, 314 Or at 164. As this court wrote in Robertson, “[w]hen the proscribed means include speech or writing, * * * even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such ‘overbreadth.’ ” 293 Or at 417-18. As noted, it is this characteristic that places a law in the second Robertson category. If, on the other hand, the law does not refer to expression at all, then the appropriate inquiry is whether the law could be constitutionally applied to the defendant’s specific act or acts of expression. That “as applied” inquiry arises out of the third Robertson category.

The ordinances here do not fit within the second Robertson category. Neither Eugene Code section 4.860(d) nor Eugene Code section 3.338(e), whether read alone or together, “expressly prohibits expression to achieve [certain forbidden] * * * effects.” See State v. Plowman, supra, 314 Or at 164 (citing State v. Robertson, supra, 293 Or at 417-18). The ordinances do not, by their terms, purport to proscribe speech or writing as a means to avoid a forbidden effect. Analysis for overbreadth under the second Robertson category is inappropriate. This brings us to the inquiry whether the ordinances as applied impermissibly burden protected expression.

When a law is challenged “as applied” under the third Robertson category, the question is whether the law was applied so that it did, in fact, reach privileged communication. State v. Robertson, supra, 293 Or at 417. Under that approach, the question in these cases is whether application of the pertinent provisions of the Eugene Code by the City of Eugene has limited the sale of defendant’s joke books in a manner that impermissibly burdens his right of free speech guaranteed by Article I, section 8. We conclude that it has.

It may be that the city could, within its legitimate powers and without violating Article I, section 8, ban all sidewalk vending, including the sale of expressive material.¹¹ It also may be that the city could permit the sale only of certain narrowly drawn categories of goods, where a special public need for such goods could be shown. On those points, we express no opinion.¹² So long as the city chooses to make its sidewalks available for some general commercial activity, however, it may not treat a vendor of expressive material more restrictively than vendors of other merchandise — at least, not without being able to offer some explanation as to how the sale of the other material meets a special need or how the sale of the expressive material in question gives rise to special problems reasonably justifying the regulation of the vendor of expressive material differently and more stringently than other vendors. No such explanation has been made in these cases.¹³ Indeed, beyond the mathematics of the situation, there does not appear to be any rational basis for the burden that the city has chosen to place on defendant’s expressive activity. In the absence of such a basis, Article I, section 8, requires that defendant be given the same opportunity for the public sale of his expressive material goods that is given to vendors of other products. As applied, the ordinance under which defendant was convicted unconstitutionally denied defendant that opportunity. Defendant’s convictions properly were reversed.¹⁴

The decision of the Court of Appeals is affirmed on other grounds. The judgments of conviction are reversed.

1 As we explain,post, the constitutional issue in these cases arises not because of the prohibitory wording of Eugene Code section 4.860(d) itself. The problem arises because another ordinance, Eugene Code section 3.338(e), qualifies the flat prohibition in section 4.860(d) by permitting certain kinds of activity, while the activity that defendant wished to carry on — bookselling — remained prohibited.

2 Article I, section 8, of the Oregon Constitution, provides: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

3 After the Court of Appeals issued its opinion in these cases in April 1993, the City of Eugene amended its sidewalk vending ordinances. Defendant argues that the amendments rendered these cases moot. They did not. A justiciable controversy remains, because the validity of defendant’s two convictions under the former version of the ordinances depends on the resolution of the constitutional issues presented by these cases.

4 The Eugene Code also provided for at least two other exceptions: the conduct of business within a “pedestrian mall” and other sidewalk sales approved by permit as part of a “special event.” Eugene Code § 3.337 (later amended). Defendant acknowledged that he is permitted to sell his books in public during a “Saturday Market” that takes place every week from April through December.

5 Additional requirements were that each vendor submit to the city a hold harmless agreement and proof of liability insurance, conduct business only at the location designated on the license, pay a right-of-way fee, and occupy the vending location five days per week for six hours per day. None of those additional requirements is at issue here.

6 In both cases, defendant raised his constitutional claims by demurrer, motion to dismiss, and motion for judgment of acquittal.

7 The dissenting judges also rejected defendant’s alternate arguments that the ordinance violated the free speech guarantee of the First Amendment, the equal protection clause of the Fourteenth Amendment, and the equal privileges clause of Article I, section 20, of the Oregon Constitution. Because we dispose of these cases under Article I, section 8, we need not address defendant’s alternative arguments.

8 By “speech,” we mean, and understand the city to mean, “the free expression of opinion, or * * * the right to speak, write, or print freely on any subject whatever, ’ ’ which is referred to in Article I, section 8, of the Oregon Constitution. We use the words “speech” and “expression” interchangeably. See Huffman and Wright Logging Co. v. Wade, 317 Or 445, 450 n 5, 857 P2d 101 (1993) (employing the same terminology).

9 At all times relevant to these cases, Eugene Code section 3.336 provided that, “[a]s used in sections 3.336 to 3.342, ‘sell’ or ‘offer for sale’ includes but is not limited to the solicitation, exchange, transfer or delivery of goods or services.” (Emphasis supplied.) Therefore, contrary to the city’s assertion, section 3.338(e), which allows sidewalk vendors to “sell” only food, beverages, flowers, and balloons, is not limited in its application to the “exchange of money for goods, ’’but also applies, inter alia, to “solicitation.”

10 The city points out that ‘Td]efendant has not come forward with any evidence that he was denied a license under [Eugene Code section] 3.338.” Like the Court of Appeals, “[w]e attach no significance to that fact because, as a matter of law, [defendant] was ineligible for a license for the very reason that he maintains makes the ordinance unconstitutional.” City of Eugene v. Miller, 119 Or App 293, 295 n 1, 851 P2d 1142 (1993).

14 Because defendant’s convictions are reversed on the ground that the application of the two ordinances to defendant’s particular activity is constitutionally impermissible, the ordinances, had they not been superceded by amendment, would have remained valid and enforceable in other contexts.

11 Certainly, the city’s interests in reducing congestion, promoting business development, lessening unfair competition, and minimizing the city’s liability are legitimate interests that the city has the right and the power to advance.

12 It is indisputable that a city may enact reasonable regulations to further its legitimate interest in maintaining public health, safety, and welfare. See City of Astoria v. Nothwang, 221 Or 452, 460, 351 P2d 688 (1960) (recognizing that city has power to enact police regulations to promote public health and safety); Cove Lodge v. Harris, 134 Or 566, 572, 294 P 355 (1930) (“The right of a municipality to exercise the [police] power to preserve the health, to promote the morals and to promote the safety of its citizens has long been settled by repeated adjudications.”); cf. State v. Laundy, 103 Or 443, 458, 204 P 958, 206 P 290 (1922) (“The possession and enjoyment of all rights are subject to such reasonable conditions as the governing authority may deem essential to the safety, peace and welfare of the general public”). However, regulations that limit the dissemination of expressive material must be drawn and applied with care, in order to avoid unreasonably impinging on the right of free speech and expression guaranteed by Article I, section 8.

13 The dissenting opinion in the Court of Appeals noted that “the activity of selling of books in the middle of the street or on the sidewalk is not the same activity as the selling of the excepted commodities and may create different hazards for the public.” City of Eugene v. Miller, supra, 119 Or App at 305 (Edmonds, J., dissenting). We do not dispute the assertion that the activities are “not the same.” That fact proves nothing, however. The city has not identified any specific hazard created by the sale of expressive material that justifies the city in treating a vendor of that material more restrictively than vendors of food, beverages, flowers, and balloons.