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C. Solicitation.

Many of the major cases on solicitation predate the crystallization of the TPM and expressive conduct tests. These cases are best read by paying as much attention to their facts and holdings as to their language.

"It is black letter law that the holding of a case is determined ' "by taking account (a) of the facts treated by the judge as material, and (b) his decision as based on them." ' " (People v. Davis (1994) 7 Cal.4th 797, 823 (dis. opn. of Mosk, J.), quoting Achen v. Pepsi-Cola Bottling Co. (1951) 105 Cal.App.2d 113, 124.)

1. Early cases.

"It bans unlicensed communication of any views or the advocacy of any cause from door to door, and permits canvassing only subject to the power of a police officer to determine, as a censor, what literature may be distributed from house to house and who may distribute it." (Id. at p. 163, italics added.)

The ordinance was struck down under Lovell v. Griffin (1938) 303 U.S. 444, which had invalidated a sweeping ban on all literature distribution. (Schneider, supra, 308 U.S. at p. 164.) The censorship potential of the ordinance, permitting some to solicit while others were banned, was particularly obnoxious. (Ibid.) The Court was careful to note, however, that "reasonable hours" and "other features of such activities . . . may be regulated in the public interest without prior licensing or other invasion of constitutional liberty." (Id. at p. 165.) Schneider does not stand for the proposition that in-person solicitation and receipt of money cannot be restricted or even prohibited. That aspect of Schneider's conduct was not the basis of the permit requirement.

Cantwell v. Connecticut (1940) 310 U.S. 296 is another prior restraint case, involving a license requirement for solicitation. The statute empowered state officials to decide which causes were "bona fide object[s] of charity" and which were not. Only the approved charities received the required certificate. (Id. at p. 302.)

This power of censorship vested in state officials rendered the statute unconstitutional. (Id. at p. 305.) The Cantwell Court was careful to note, however, "that a state may by general and nondiscriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets . . . ." (Id. at p. 304.)

Jamison v. Texas (1943) 318 U.S. 413 involved a prohibition against distributing handbills. The handbills at issue publicized a meeting to be held later and also included an offer to deliver books in return for a small donation. Jamison distributed her handbills in an orderly and quiet manner. The books were not sold on the street, but would have been delivered later. The books cost Jamison more than the donation she requested. (Id. at pp. 414-415.)

The ordinance was struck down on the authority of Lovell, Schneider, and Cantwell. Jamison's "clearly religious activity" could not be prohibited

"merely because the handbills invite the purchase of books for the improved understanding of the religion or because the handbills seek in a lawful fashion to promote the raising of funds for religious purposes." (Id. at p. 417.)

Distinguishing valid time, place, and manner restrictions, the Court noted that handbilling "may not be prohibited at all times, at all places, and under all circumstances." (Id. at p. 416.)

Murdock v. Pennsylvania (1943) 319 U.S. 105 involved a flat license tax on solicitation for orders for goods of any kind. (Id. at p. 106.) The defendants were, once again, Jehovah's Witnesses distributing their literature. Whether they were selling it or merely giving it away and requesting donations was unclear. (See id. at p. 107.) Justice Douglas, writing for the Court, begins with a long song of praise for the "colporteur,"⁽³⁾ but then defines the "single issue" narrowly:

"the constitutionality of an ordinance which as construed and applied requires religious colporteurs to pay a license tax as a condition to the pursuit of their activities." (Id. at p. 110.)

Murdock deals largely with distinguishing religious activity from "purely commercial." (Ibid.)

The heart of Murdock is this: The tax

"is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment. Accordingly, it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise." (Id. at p. 114.)

Read broadly, this passage may be taken to mean that there is a constitutional right to solicit in person for the immediate sale of printed matter or for a donation for a religious cause. If that is what Murdock means, it has long since been overruled, as we will show below. Read narrowly, Murdock simply means that the flat license tax is an oppressive burden on religion and the press, just as it is on interstate commerce. (See id. at p. 113 (relying on Commerce Clause precedents).) If that is what Murdock means, it is still good law, but it has no application to this case.

Martin v. Struthers (1943) 319 U.S. 141, yet another Jehovah's Witnesses case, was decided the same day as Murdock. The ordinance in question prohibited persons distributing literature door to door from ringing the doorbell or knocking. (Id. at p. 142.) Citing Lovell, Schneider, and Cantwell, the Court struck down this ordinance as a violation of freedom of speech and press. (Id. at p. 143.) The Court took pains to distinguish an ordinance empowering a householder to forbid unwanted solicitors, which would be valid. (See id. at pp. 147-148; cf. L.A. Mun. Code, § 41.59(b)(2)(E) (persisting after request to stop).)

In Thomas v. Collins (1945) 323 U.S. 516, the high court expressly distinguished solicitation from pure advocacy in terms of permissible regulation. In Thomas, a labor union leader gave a speech in Texas without the required organizer's card for labor solicitation. He invited the crowd generally to join the union and also singled out one member of the audience for an individual appeal to join. (Id. at pp. 522-523.) The Court decided in favor of the labor leader. However, it carefully noted that he did not receive or solicit any funds (id. at p. 525), and that under the procedural posture of the case the solicitation of the individual could not be separately considered. (Id. at p. 528.)

A permit cannot be required of one who seeks to make a speech "to rally support for any social, business, religious or political cause." (Id. at p. 540.)

"Once the speaker goes further, however, and engages in conduct which amounts to more than the right of free discussion comprehends, as when he undertakes the collection of funds or securing subscriptions, he enters a realm where a reasonable registration or identification requirement may be imposed." (Ibid., italics added.)

Conduct is different from speech, and collection of funds is conduct.

This brings us to Breard v. Alexandria (1951) 341 U.S. 622. Breard involved a place restriction on in-person solicitation, as does the present case. The ordinance in Breard prohibited door-to-door sales or solicitation of orders. (Id. at pp. 624-625.)⁽⁴⁾ After rejecting due process and interstate commerce challenges (id. at pp. 629-641), the Court turned to the First Amendment question.

Breard was in the business of selling magazine subscriptions. (Id. at p. 624.) Therefore, he had a First Amendment argument. "Only the press or oral advocates of ideas could urge this point. It was not open to the solicitors for gadgets or brushes." (Id. at p. 641.) Breard was in the same category as the Jehovah's Witnesses and different from the Fuller Brush Company. The Court agreed "that the fact that periodicals are sold does not put them beyond the protection of the First Amendment." (Id. at p. 642.) However, the selling "brings into the transaction a commercial feature." (Ibid.) The ordinance was upheld. (Id. at p. 645.)

Breard is consistent with a narrow reading of Murdock, but not a broad reading. Murdock had held that the Jehovah's Witnesses' activities were not rendered purely commercial by the fact that the literature was sold (319 U.S. at p. 111), but recognized "that religious groups and the press are [not] free from all financial burdens of government." (Id. at p. 112.) Breard similarly recognizes that publications are still entitled to First Amendment protection, even though they are sold for a profit, but that the protection is not absolute. The rights of others must be considered. (Breard, supra, 341 U.S. at p. 642.) In each case, the Court approaches the activity in question as a protected First Amendment activity, but with a commercial aspect to it which subjects it to reasonable regulation and taxation. (Compare Murdock, supra, 319 U.S. at p. 114 ("It [the tax] is in no way apportioned") with Jimmy Swaggart Ministries v. Board of Equalization of Cal. (1990) 493 U.S. 378, 389 (percentage sales tax on Bibles, etc., constitutional); see also Texas Monthly, Inc. v. Bullock (1989) 489 U.S. 1, 21 (plurality) ("unnecessary sweeping statements in Murdock" disavowed).)

Breard distinguishes Martin v. Struthers by emphasizing that Martin involved only the free distribution of literature. (Breard, supra, 341 U.S. at pp. 642-643.) Yet Martin was decided the same day as Murdock, and Murdock saw no significant difference between the sale of a publication and the distribution combined with solicitation of a donation. (See 319 U.S. at p. 111.) The difference between Breard and Martin is the manner of solicitation. Martin simply left leaflets with people advising them of a meeting. (319 U.S. at p. 142.) Breard employed "possibly persistent solicitor[s]" (341 U.S. at p. 644) who confronted people in their homes, asking them to make an immediate change in legal position, i.e. contracting to purchase magazines. Notwithstanding the constitutional guarantee of freedom of press, the city had the power to protect people from such confrontations. That, amicus submits, is the true distinction between Martin and Breard.

Breard confirms what Cantwell said eleven years earlier. A "state may by general and nondiscriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets . . . ." (Cantwell, supra, 310 U.S. at p. 304). The prohibition on door-to-door sales in Breard was a reasonable regulation of the place and manner of solicitation, justified by the interest of residents in avoiding "the annoyances of house-to-house canvassing." (341 U.S. at p. 644.) The annoyance caused by salesmen is greater than that caused by people distributing handbills. The ban on door-to-door selling was therefore upheld in Breard, while prohibitions on free distribution of literature in Lovell and Martin were struck down.

Schaumburg v. Citizens for a Better Environment (1980) 444 U.S. 620 dealt with a discriminatory prior restraint. Charities were required to obtain a permit before soliciting. (Id. at pp. 623-624.) Some charities would be issued the permit and some would not. Those that spent more than 75% of the proceeds for salaries and administrative expenses would not be issued the permit. (Id. at p. 624.)

Schaumburg reviewed the history described above to answer the contention that solicitation was completely unprotected. (See id. at p. 628.) After reviewing the history, Schaumburg concluded that charitable solicitation "has not been dealt with in our cases as a variety of purely commercial speech." (Id. at p. 632, italics added.)

This conclusion is fully consistent with the statements in Cantwell and Breard that solicitation, whether for a charity or a magazine, remains subject to reasonable regulation. Unfortunately, in discussing Breard, Schaumburg dwells on the fact that charitable solicitation was not involved in that case. (444 U.S. at pp. 631-632.) As explained supra at pp. 15-16, that is not the true distinction between Breard on the one hand and Murdock and Martin on the other.

On its facts, Schaumburg is straightforward. The 75% requirement operated as a form of censorship. One medium of communication, door-to-door solicitation, was open to proponents of some causes but denied to those deemed less worthy by the government. The connection between the 75% requirement and the prevention of fraud was too tenuous to justify such a regulation. (Id. at pp. 636-637.) There was no connection at all between the 75% requirement and the protection of residential privacy and safety. These interests are invaded to the same degree by any solicitor. (Id. at p. 638.)

Schaumburg thus plowed no new ground on the status of solicitation. After Schaumburg, as before, charitable solicitation is within the protection of the First Amendment but subject to some regulation. The ordinance in Schaumburg was simply held to be beyond the bounds of permissible regulation. Schaumburg did not need to discuss time, place, and manner regulations in any depth, because the portions of the ordinance which imposed those kinds of restrictions were not at issue. (See id. at p. 622, fn. 1, 639.)

From these cases, we can distill some controlling principles. Regulations which distinguish solicitation from other speech are not, for that reason alone, invalid or subject to heightened scrutiny, particularly where the solicitation targeted is the in-person solicitation for immediate payment or other change of legal position. (Thomas, Breard.) Collection of funds is conduct, and it is subject to greater regulation than "pure" advocacy. (Thomas.) Limits on solicitation may run afoul of the First Amendment, however, if they sweep too broadly (Jamison, Martin), impose excessive burdens (Murdock), or vest such discretion in officials as to invite favoritism or censorship. (Schneider, Cantwell.) These results are fully consistent with the verbal formulations of the TPM and O'Brien tests, as we now know them.

2. Heffron.

Heffron categorizes as "content neutral" a rule that makes precisely the distinction between solicitation and other speech which plaintiffs vehemently claim is "content based." As interpreted and applied by the fair authorities,

"the Rule does not prevent organizational representatives from walking about the fairgrounds and communicating the organization's views with fair patrons in face-to-face discussions, [footnote omitted] [but] it does require that any exhibitor conduct its sales, distribution, and fund solicitation operations from a booth rented from the Society." (Id. at pp. 643-644, italics added.)

Plaintiffs protest that the City's contention that this regulation "treats solicitation differently" is "just wrong." (Resp. Brief at p. 25, fn. 6.) In fact, the City is quite right. The Krishnas challenged the rule as applied (Heffron, supra, 452 U.S. at p. 644), and the case was decided on the basis that the rule applied to solicitation, not just distribution. (Id. at pp. 648-649.)

Under the rule as applied, a Krishna member could say "I'd like to discuss Lord Krishna with you" anywhere on the fairgrounds. However, if a request for a donation were appended to that statement, it could only be made from a booth. This is precisely the distinction which plaintiffs claim makes the present ordinances content based. (Resp. Brief at p. 21.) Yet Heffron squarely held that the rule was content neutral, because it "applies evenhandedly to all who wish . . . to solicit funds." (452 U.S. at p. 649.)

Metromedia, Inc. v. San Diego (1981) 453 U.S. 490, decided eleven days after Heffron, provides an informative contrast. Under the San Diego billboard ordinance,

"onsite commercial advertising is permitted, but other commercial advertising and noncommercial communications using fixed-structure signs are everywhere forbidden unless permitted by one of the specified exceptions." (Id. at pp. 495-496 (plur. opn.).)⁽⁵⁾

The differential treatment of commercial on-site and noncommercial signs made the ordinance content based and took it "out of the domain of time, place, and manner restrictions." (Id. at pp. 516-517.) But how can the differential treatment of commercial and noncommercial be "content based" in Metromedia while the differential treatment of solicitation and nonsolicitation is "content neutral" in Heffron? The distinction appears to lie in the connection between the classification of the speech and the government interest. In Metromedia, noncommercial billboards were just as much of a threat to the legitimate government interests served by the billboard ban as on-site commercial billboards were.

"The city does not explain how or why noncommercial billboards located in places where commercial billboards are permitted would be more threatening to safe driving or would detract more from the beauty of the city." (Id. at p. 513.)

In Heffron, the classification had a direct and strong relationship to the government interest in maintaining order in crowded conditions. (See 452 U.S. at pp. 649-650, 653.) Solicitation for immediate payment presented a much greater threat to that interest than the communications not regulated.

This brings us back to O'Brien's statement of the rule that

"the governmental interest is unrelated to the suppression of free expression and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (See supra at p. 6.)

The character of the government interest and its relationship to the regulation must be considered. If the Constitution requires the government to exclude from the regulation speech which does not adversely impact the governmental interest, the same Constitution cannot simultaneously require the government to include such speech to meet the content neutrality requirement. That would be a Catch-22. The Constitution permits and requires a reasonable fit between the government interest and the scope of the regulation, and the interest cannot be hostility to a particular message or subject matter. The commercial/noncommercial distinction in Metromedia had no basis in the government interest and was invalid. The solicitation/nonsolicitation distinction in Heffron had a strong connection with the government interest, and that interest was completely neutral as to the subject of the solicitation.

If California law follows federal in this regard, see infra part III, then Heffron is dispositive of the main issue in the present case. When the government interest is directly related to the adverse effects of solicitation, then a regulation of time, place, and manner of solicitation which is neutral to the underlying purpose or message is "content neutral" for the purpose of the O'Brien and TPM tests.

II. Valid regulations need not be the "least restrictive means."

The expressive conduct test of United States v. O'Brien (1968) 391 U.S. 367, 377 requires, as one element, that

"the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of [a substantial governmental] interest."

Similarly, time, place, and manner restrictions must be "narrowly tailored to serve a significant governmental interest." (Clark v. Community for Creative Non-Violence (1984) 468 U.S. 288, 293.)

In applying these tests, the high court has consistently rejected challenges of the type asserted by the plaintiffs.

"Regulations that burden speech incidentally or control the time, place, and manner of expression, see [Clark, supra,] at 298-299, and n. 8, must be evaluated in terms of their general effect. Nor are such regulations invalid simply because there is some imaginable alternative that might be less burdensome on speech. Id., at 299. Instead, an incidental burden on speech is no greater than is essential, and therefore is permissible under O'Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. Cf. 468 U.S., at 297 ("if the parks would be more exposed to harm without the sleeping prohibition than with it, the ban is safe from invalidation under the First Amendment"). The validity of such regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests. Id. at 299." (United States v. Albertini (1985) 472 U.S. 675, 688-689.)

In Ward v. Rock Against Racism (1989) 491 U.S. 781, 798, the Supreme Court flatly rejected the contention that a time, place, and manner regulation must be the "least restrictive means" to be valid.

The fact that fraud and duress can be punished criminally does not mean that government cannot adopt prophylactic measures to prevent or inhibit such offenses. A person who gives money to buy meals for needy children, when the money actually goes to propagate the Krishna religion (see People v. Fogelson (1978) 21 Cal.3d 158, 168 (conc. opn. of Mosk, J.)), will probably never know he has been defrauded. A person pestered at a bus stop, who cannot walk away without missing her bus and who gives money to a panhandler just to make him go away, is unlikely to go to the inconvenience of pressing charges. A more likely response is to give up on public transportation and drive to work, with all the traffic and environmental consequences that choice entails. The government interests at stake here would be "achieved less effectively absent the regulation," and that is enough for the fourth prong of O'Brien and the second prong of the TPM test.

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Footnote 3. "A peddler of devotional literature." American Heritage Dict. (3d ed. 1992) p. 376, col. 1.

Footnote 4. Such enactments are commonly called "Green River" ordinances after Green River v. Fuller Brush Co. (10th Cir. 1933) 65 F.2d 112 and Green River v. Bunger (Wyo. 1936) 58 P.2d 456, app. dism. for want of a federal question (1937) 300 U.S. 638.

Footnote 5. Justice White's plurality opinion is the one concurring in the judgment on the narrower grounds and therefore may be considered as the one stating the holding of the case. (See Marks v. United States (1977) 430 U.S. 188, 193.)