Wollam v. City of Palm Springs

379 P.2d 481, 59 Cal. 2d 276, 29 Cal. Rptr. 1, 1963 Cal. LEXIS 160, 52 L.R.R.M. (BNA) 2688

• Court: California Supreme Court
• Decided: March 12, 1963
• Docket: L. A. 26854
• Status: Published

Opinions

TOBRINER, J.

While an ordinance may properly regulate the use of sound trucks if narrowly drawn to avoid specific evils, such as raucous noise or traffic congestion, an ordinance which indiscriminately sweeps within its ambit an inhibition of the communication of a message invades the right of free speech. Because, as we shall show, the instant ordinance falls within the latter category, it cannot stand.

On August 27, 1958, the City Council of Palm Springs enacted Ordinance No. 395, adding chapter 44 to the city’s ordinance code. The ordinance governs the use of sound trucks; it consists of five articles, each article incorporating numerous provisions. Article 440 contains definitions applicable throughout the chapter; article 441 governs registration of trucks for commercial use; article 442 covers trucks for noncommercial use; article 443 sets up regulations pertaining to the use of both commercial and noncommercial trucks; and article 444 provides penalties and a provision for separability.

Both the commercial and noncommercial user must file a registration statement with the chief of police containing specified information, including the name of the owner and user of the truck, the wattage and volume of the equipment of the truck, and the distance for which sound will be thrown from the truck. The registration statement, after being certified by the chief of police and returned to the applicant, apparently serves as a license for use. The chief of police “shall not return to the applicant a certified copy of the Registration Statement,” if he finds, among other matters, that the conditions of pedestrian movement are such that the sound truck “would constitute a detriment to traffic safety” or if the application reveals that the applicant would violate the regulations prescribed in article 443.

Article 443 restricts the hours of use to four specified hours a day, totally forbidding utilization on Sundays and holidays; it prohibits the operation of sound trucks unless the truck proceeds at a speed of at least ten miles per hour;¹ it requires that the volume of sound be controlled so that it will not be audible in excess of 200 feet from the truck, not be unreasonably loud, raucous, jarring, disturbing, and not be a nuisance to persons within the area of audibility ;² it limits the equipment usable to that having a maximum output of 15 watts, and it includes other provisions not presently pertinent.

Plaintiff Wollam brought this action on behalf of himself and the members of the Culinary Workers and Bartenders Union, Local 535, attacking the ordinance as unconstitutional. The trial court upheld this contention upon the ground that the ordinance unconstitutionally sought to prevent stationary use of sound trucks.

The stipulated facts recite that “As part of its campaign to make known to members of the public the existence of payment of substandard wages by certain employers and the existence of substandard working conditions . . . plaintiffs have from time to time adopted various means of peaceful publication. These have included, among other things, the use of sound amplification equipment containing only human speech and containing a statement of grievances of employees. Said sound amplification equipment has been placed in an automobile which has been parked at the curb during the time said sound amplification equipment is in use. ’ ’ The stipulation further states that plaintiff desires to use only stationary sound trucks, and that defendants will enforce the ordinance and arrest any violators.³

The sole issue before this court relates to the constitutional validity of section 4430.3 which the trial court concluded to be invalid “insofar as it applies to the dissemination of information from motor vehicles lawfully parked by requiring said motor vehicles to be ambulatory.” To resolve the stated problem we must answer two questions. First, does the freedom of speech guaranteed by the First Amendment, which admittedly applies to the content of the communication, extend, as well, to the means of communication? More particularly, does it include sound trucks? Second, if so, does the section in question exceed the permissible range of regulation so as to impinge on constitutionally guaranteed rights? For the reasons hereinafter set out we believe that both of these questions should be answered affirmatively.

We turn first to the question of whether the protection of free speech as incorporated into the Fourteenth Amendment ⁴ extends to the use of a sound truck as a means of dissemination of opinion. Our problem here emanates primarily from two decisions of the United States Supreme Court rendered within a half year of one another. Eeconciliation of the results reached in these two cases has caused difficulty to the commentators⁵ and to this court.⁶

In the first of these cases, Saia v. New York (1948) 334 U.S. 558 [68 S.Ct. 1148, 92 L.Ed. 1574], the court declared unconstitutional an ordinance of the City of Lockport, New York, which prohibited the use of sound amplifying equipment unless authorized by the chief of police. Saia, a Jehovah’s Witness, suffered conviction for violation of the ordinance in setting up a loud speaker in a public park and broadcasting religious programs without obtaining a permit from the chief of police.

Justice Douglas, speaking for the majority of the United States Supreme Court, held that the use of this means of communication fell within the protection of free speech of the First Amendment and that the ordinance failed. Instead of narrowly and specifically prohibiting the abuses that precipitated the ordinance, it granted a general discretion to the chief of police which could be applied in an area wide of the mark. The court explained, “The statute is not narrowly drawn to regulate the hours or places of use of loudspeakers, or the volume of sound (the decibels) to which they must be adjusted. . . . The right to be heard is placed in the uncontrolled discretion of the Chief of Police. He stands athwart the channels of communication as an obstruction which can be removed only after criminal trial and conviction and lengthy appeal. A more effective previous restraint is difficult to imagine. . . . Loudspeakers are today indispensable instruments of effective public speech. The sound truck has become an accepted method of political campaigning. It is the way people are reached. ...”

Indicating that narrowly drawn regulation of sound trucks would be permissible, although prohibition in the uncontrolled discretion of the chief of police would fail, Justice Douglas stated, “The present ordinance would be a dangerous weapon if it were allowed to get a hold on our public life. Noise can be regulated by regulating decibels. The hours and place of public discussion can be controlled. But to allow the police to bar the use of loud-speakers because their use can be abused is like barring radio receivers because they too make a noise.

. . . Any abuses which loud-speakers create can be controlled by narrowly drawn statutes. When a city allows an official to ban them in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas. ...” (Pp. 560-562; italics added.)

Justice Frankfurter, with Justices Reed and Burton concurring, dissented upon the basis that “the limitations by New York upon the exercise of appellant’s rights of utterance did not . . . exceed the accommodation between the conflicting interests which the State was here entitled to make in view of the time and place and circumstances.” (At p. 566; italics added.) Justice Jackson, alone of the members of the court, held that the regulation did not involve the issue of free speech.

In the second case to which we alluded, supra, Kovacs v. Cooper (1949) 336 U.S. 77 [69 S.Ct. 448, 93 L.Ed. 513, 10 A.L.R.2d 608], the Supreme Court sustained a conviction under an ordinance of the City of Trenton, New Jersey, which read: ‘ ‘ That it shall be unlawful for any person . . . to . . . operate . . . for any . . . purpose whatsoever, on or upon the public streets, alleys or thoroughfares in the City of Trenton, any device known as a sound truck, loud speaker or sound amplifier . . . which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing upon said streets or public places aforementioned.” (P. 78; italics added.)

Chief Justice Vinson and Justice Burton joined with Justice Reed, who announced the opinion of the court. While the decision construed and upheld the ordinance as a limited prohibition of equipment emitting “loud and raucous noises,” it did not sustain the power of the state absolutely to prohibit the use of sound trucks. In fact, Justice Reed stated: “Absolute prohibition within municipal limits of all sound amplification, even though reasonably regulated in place, time and volume, is undesirable and probably unconstitutional as an unreasonable interference with normal activities.” (At p. 82.) The court sustained the Trenton ordinance as a reasonable legislative regulation, saying, “City streets are recognized as a normal place for the exchange of ideas by speech or paper. But this doe's not mean the freedom is beyond all control. We think it is a permissible exercise of legislative discretion to bar sound trucks with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of municipalities.” (P. 87; italics added.)

Justices Frankfurter and Jackson in separate opinions concurred with the majority for the same reasons which prompted them to dissent in Saia. Justice Murphy dissented without opinion.

In an opinion in which Justices Douglas and Rutledge concurred, Justice Black also dissented. The basic thrust of Justice Black’s opinion indicated that the court’s limitation of the ordinance to equipment emitting loud and raucous noises lacked support; that the defendant had not been charged or convicted with such a limited offense, and that the record did not show that the noise emitted was “loud or raucous.” Further, he pointed out that the State Supreme Court in its decision had not so limited the offense. On this basis, Justice Black concluded that the ordinance constituted an absolute prohibition and fell within the dictates of Saia. In a separate opinion Justice Rutledge stated that, aside from questions of free speech, the ordinance, as indicated by the differing interpretations of the Supreme Court, should be invalidated as too vague to constitute due process.

We believe that the Saia and Kovacs decisions are, in essence, reconcilable, and indicate two essential propositions. The first of these, implicit in Saia, recognizes that the use of a sound truck as an effective means of human communication falls within the constitutional guarantee of freedom of speech. The second position, intimated in Saia and made explicit in Kovacs, specifies that this means of communication may be controlled by state and local governments to “prohibit acts or things reasonably thought to bring evil or harm to its people.” (P.83.) There Justice Reed stated the ordinance “is an exercise of the authority granted to the city by New Jersey ‘to prevent disturbing noises,’ N.J.Stat. Ann., tit. 40, § 48-1(8), nuisances well within the municipality’s power to control. The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community.” (P. 83.) As one commentator on Kovacs concluded; “. . . the Kovacs decision, while displaying internal confusion, has left the fundamental rights of sound truck use essentially unchanged: municipalities may impose reasonable regulations as to place, time, and volume, but still may not absolutely ban sound trucks nor subject them without adequate standards, to previous restraints that may allow possible censorship.” (62 Harv. L. Rev. 1228, 1229; see also 47 Mich. L. Rev. 1007; 14 Mo. L. Rev. 194; 2 U.C.L.A. L. Rev. 561; 34 Cornell L.Q. 626; but see 22 So.Cal.L. Rev. 416; 97 U. Pa. L. Rev. 730.)⁷

Our decision in Haggerty v. Associated Farmers of Calif. (1955) 44 Cal.2d 60 [279 P.2d 734], followed the lines marked out in Saia and Kovacs. There we held that the ordinance fell within the proper exercise of the police power to protect the public from the specific abuse of the loud speaker; the ordinance “makes unlawful the emission or transmission of ‘any loud and raucous noise upon or from any public highway or public thoroughfare or from any aircraft of any kind whatsoever. ’ ” (P. 62.) The enactment carefully defines raucous noise in order to prevent the “aural aggression” to which Justice Frankfurter alluded in Kovacs. Our opinion quotes the following statement in Kovacs: “We think it is a permissible exercise of legislative discretion to bar sound trucks with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of municipalities.” (P. 67.) The court concludes, “The county, in the exercise of the police power of the state, has a legitimate interest in the preservation of the safety and tranquility of its citizens. It cannot be said that the present ordinance is not reasonably directed to that end.” (P. 70.)

The rule of these cases that the sound truck falls within the constitutional protection of free speech and that it is subject to the specific regulation of its ill effects rests upon the realities of the modern role of such trucks and the necessity for reasonable curtailment of the excessive use of their sound mechanism.

In certain instances the sound truck may be the only practical means for communication of opinion; alternative modes of communication, such as radio or television, may be prohibitively expensive, not available, or not effective. In the instant case the union seeks to inform the public at the job site of its disagreement with the employer. An exposition of the union’s position in a dispute may in certain cases be best conveyed by a prepared communication, carefully scrutinized, rather than by the extemporaneous and often inarticulate utterances of a picket. The loss of the loud speaker thus becomes a curtailment of the recognized right of the union to publicize effectively its cause at the job site. (See McKay v. Retail Auto. S. L. Union No. 1067 (1940) 16 Cal.2d 311 [106 P.2d 373] ; Thornhill v. Alabama (1940) 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093].)

The right of free speech necessarily embodies the means used for its dissemination because the right is worthless in the absence of a meaningful method of its expression. To take the position that the right of free speech consists merely of the right to be free from censorship of the content rather than any protection of the means used, would, if carried to its logical conclusion, eliminate the right entirely. The right to speak freely must encompass inherently the right to communicate. The right to speak one’s views aloud, restricted by the ban that prevented anyone from listening, would frame a hollow right. Eather, freedom of speech entails communication; it contemplates effective communication.

On the other hand the selection of the means of communication and the use of such means is not limitless. The municipality may issue reasonable and necessary regulations as to such matters. But the right to regulate does not necessarily sanction the outright prohibition. The municipality cannot justify the prohibition of sound trucks upon the ground that the municipality cannot otherwise avoid loud and raucous noise. The municipality in the proper exercise of its police power may prescribe volume limitations. Thus the proper test of regulation by a municipality in this area turns upon whether the regulation is a reasonable and necessary one. A measure unnecessary for police purposes should not serve as the justification for an abridgement of the fundamental freedom of free speech.

We therefore turn to the second question which we proposed above: whether the city has exceeded the permissible range of regulation so as to impinge on constitutionally guaranteed rights. We must determine whether section 4430.3⁸ is a necessary regulation governing the use of this means of communication.

Section 4430.3 primarily aims to control traffic. The provision is drawn from a model ordinance recommended by the National Institute of Municipal Law Officers in their Report No. 123 (1948) entitled, “Municipal Control of Noise—Sound Trucks—Sound Advertising Aircraft—Unnecessary Noises— Model Annotated Ordinances.” The report partly sets out the basis for the provision requiring sound trucks to be ambulatory. ‘ This suggested regulation is designed to prevent the operator of a sound truck from blaring forth his message continuously from one spot as it is generally conceded that continuous noise is more than likely to result in injury to nerves, health, annoyance, disturbance and nuisance. . . . Also, and primarily, if the truck keeps moving, it will not cause crowds to collect about it with the usual attendant traffic congestion and resultant hazards. . . . The requirement of a speed of at least ten miles per hour for sound trucks prevents intentional traffic congestion as well as the evils already referred to. It seems well established that more people will be killed or injured where streets are crowded by pedestrians and motorists with some, or both, wanting to move on and some wanting to listen to the sound truck. If the sound truck keeps moving pedestrians cannot crowd around it and get hit by passing ears. ...”

Although the ordinance thus proposes to prevent traffic congestion by the requirement that the sound trucks keep moving, its inevitable result must virtually prohibit the effective use of the truck for any complete message or communication. Its mechanized voice must necessarily be restricted to a short blurb, as the truck, with controlled volume, rolls past. Any address of sustained reason becomes impossible.

Section 4430.3 covers a larger area than the excision of the evils to which it was directed. Its reach is not limited to the prohibition of a sound truck which impedes the flow of pedestrian and vehicular traffic or which creates a dangerous traffic situation. Rather it sets up a blanket prohibition against the use of a stationary sound truck. The provision fails because, assuming its valid police purpose, it proceeds beyond that which is necessary. Because of its breadth it restrains both improper and proper communication; it exceeds its justification.

To the extent that section 4430.3 seeks to prevent prolonged distraction and annoyance by operation of the truck in one spot, the identical purpose is achieved by section 4430.7.⁹ That section imposes volume limitation and requires that the sound be so controlled that it will not be “disturbing or a nuisance to persons within the area of audibility. ’'

Nor is the prohibition of the stationary sound truck necessary for the prevention of traffic hazards. Assuming for the purpose of determining this issue that the ordinance sets up proper standards for the action of the chief of police, the ordinance contains another provision to prevent this undesired consequence. The chief “shall not” issue a license if he finds the sound truck “would constitute a detriment to traffic safety.” (§4412.2)

The Supreme Court of the United States has recently reiterated the principle that an unnecessarily wide embrace of a statute, entailing the curtailment of constitutional freedoms, cannot be justified by the sanctity of its purposes. Thus in Shelton v. Tucker (1960) 364 U.S. 479 [81 S.Ct. 247, 5 L.Ed.2d 231], the Supreme Court declared unconstitutional an Arkansas statute requiring every teacher as a condition of employment in a state-supported school or college, to file annually an affidavit listing without limitation every organization to which he had belonged or regularly contributed in the preceding five years. In describing the impropriety of exceeding the bounds of legitimate inquiry, Justice Stewart said, “In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of the legislative abridgment must be viewed in the light of less drastic means for,achieving the same basic purpose.” (P. 488; italics added.)

Justice Stewart set out a number of prior decisions which illustrate this approach. These cases are relevant to the present case. “In Lovell v. Griffin, 303 U.S. 444 [58 S.Ct. 666, 82 L.Ed. 949], the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. State, 308 U.S. 147 [60 S.Ct. 146, 84 L.Ed. 155], the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the Court noted that where legislative abridgment of ‘fundamental personal rights and liberties’ is asserted, ‘the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but may be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. ’ 308 U.S., at 161. In Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352], the Court said that ‘ [c]onduct remains subject to regulation for the protection of society, ’ but pointed out that in each case ‘the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.’ 310 U.S. at 304.” (See also: Cramp v. Board of Public Instruction (1961) 368 U.S. 278 [82 S.Ct. 275, 7 L.Ed.2d 285] ; Louisiana ex rel. Gremillion v. National Assn. for Advancement of Colored People (1961) 366 U.S. 293 [81 S.Ct. 1333, 6 L.Ed.2d 301]; Smith v. California (1959) 361 U.S. 147 [80 S.Ct. 215, 4 L.Ed.2d 205] ; Winters v. New York (1948) 333 U.S. 507 [68 S.Ct. 665, 92 L.Ed. 840] ; Thornhill v. Alabama (1940) 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093].)

In the instant ease the obstruction to the use of the sound truck to convey a complete message is absolute. As we have pointed out, this prohibition of the use of the stationary sound truck is not necessary in order to avoid traffic hazards because the ordinance provides other means for so doing. Nor does the ordinance specifically direct itself to the elimination of loud and raucous noise; instead, it prohibits the dissemination of an address by means of the truck which is not loud or raucous. The regulation, which narrows down to loud and raucous, upheld in Haggerty, embraces all sounds here. The volume of sound which could properly be prohibited in the narrow channel of loud and raucous is no narrow channel here. It is the volume of sound which, like water, may be distributed over wide lands, shallow in depth and slight in impact.

In summary, the vice of the present ordinance lies in its practical prohibition of the conveyance of a message to the public. The ordinance prevents any continuous statement, argument, or sustained presentation of a point of view that cannot be transmitted during the truck’s fleeting, momentary passage. Yet the purposes of the ordinance could have been achieved without such an incursion into the field of free speech. An ordinance narrowly drawn may properly reach to the evils which it seeks to avoid. Instead, here, the ordinance sweeps within its broad ambit the constitutional right to tell a whole story by means of this method of communication.

For this reason, we hold that section 4430.3 of the Ordinance Code of the City of Palm Springs is unconstitutional. The judgment is affirmed.

Gibson, C. J., Traynor, J., Peters, J., and Peek, J., concurred.

1 Section 4430.3 of article 443 provides: “Sound amplifying equipment shall not be operated unless the sound truck upon which such equipment is mounted is operated at a speed of at least ten (10) miles per hour except when said truck is stopped or impeded by traffic. Where stopped by traffic, the sound amplifying equipment shall not be operated for longer than one (1) minute at each such stop.”

2 Section 4430.7 of article 443 reads: “The volume of sound shall be controlled so that it will not be audible for a distance in excess of two hundred feet (200') from the sound truck, and the volume of sound shall be so controlled that it will not be unreasonably loud, raucous, jarring, disturbing, or a nuisance to persons within the area of audibility. ’ ’

3 A previous ordinance of the City of Palm Springs which purported to regulate picketing was declared unconstitutional in Rees v. City of Palm Springs (1961) 188 Cal.App.2d 339 [10 Cal.Rptr. 386], That ordinance in part rested upon “the necessity of preventing unreasonable obstruction on its streets.” (P. 341.) The court pointed out, among other matters, that “when the regulation transcends the reasonable necessity of the circumstances . . . the legislative pronouncement becomes invalid. ’ ’ (P. 344.)

4 This inclusion is no longer open to question. See e.g., Smith v. California (1959) 361 U.S. 147 [80 S.Ct. 215, 4 L.Ed.2d 205].

5 See 34 Cornell L.Q. 626; 62 Harv. L. Rev. 1228; 47 Mich. L. Rev. 1007; 14 Mo. L. Rev. 194; 22 So. Cal. L. Rev. 416; 2 U.C.L.A. L. Rev. 561; 97 U. Pa. L. Rev. 730.

6 Haggerty v. Associated Farmers of California (1955) 44 Cal.2d 60 [279 P.2d 734].

7 Two decisions have sustained absolute prohibitions of sound trucks since the decision in Kovacs. (Brinkman v. City of Gainesville (1951) 83 Ga.App. 508 [64 S.E.2d 344]; State ex rel. Nicholas v. Headley (1950, Fla.) 48 So.2d 80.) Both of these decisions, however, ignore the Saia decision.

8 See footnote 1, supra,

9 See footnote 2, supra.