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III. The California Constitution does not differ from the federal in this area.

A. Wording and History.

"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." (Cal. Const., art. I, § 2, subd. (a), italics added.)

The second sentence is substantially the same as the First Amendment. (Cf. U.S. Const., 1st Amend.) Plaintiffs claim the first sentence as the textual basis for their contention that the California Constitution is "broader" on the point. (Resp. Brief at pp. 35-36.)

This argument commits the fallacy of assuming the conclusion. The reference to "subjects" would prohibit distinguishing solicitation from other speech only if solicitation were a "subject" within the meaning of this clause. But that is essentially the same issue the United States Supreme Court has addressed in its efforts to give concrete meaning to the content neutrality requirement. The wording is just as consistent with the view that "subjects" refers to the underlying message, if any, to be funded by the proceeds of the solicitation, and not to the solicitation itself.

Indeed, when we consider the word "sentiments" along with "subjects," the latter construction seems more likely. When the officers and trustees of amicus CJLF solicit donations to support the fight against crime, they are expressing their sentiments about crime, not about soliciting. The act of soliciting generally says nothing about soliciting except for that minimal degree of expression inherent in any act, i.e. a belief that the act is somehow appropriate to the circumstances. (See Barnes v. Glen Theatre, Inc. (1991) 501 U.S. 560, 581 (conc. opn. of Souter, J.); see also id. at p. 570 (plur. opn.).)

The ordinance in question does not prevent plaintiffs Jerry Rubin and his Los Angeles Alliance for Survival from freely speaking, writing, or publishing their sentiments on the environment or peace. (See Resp. Brief at pp. 6-7.) The same is true of plaintiff Los Angeles Coalition to End Hunger and Homelessness and their sentiments on poverty. (See id. at p. 7.) The ordinance only restricts the places and manner of the combined speech and conduct of in-person solicitations to support those expressions. Nothing in the text of the California Constitution indicates that such a limitation is invalid.

The California Declaration of Rights has been readopted twice since the original Constitution of 1850. It was adopted as part of the Constitution of 1879 and then again in a revision in 1974. These reenactments at times when there were substantial bodies of statutory and case law in existence provide important aids in interpretation. If a law was on the books when a constitutional provision was adopted or readopted and there is no indication that the two were regarded as inconsistent, that is powerful evidence that the constitutional provision is properly interpreted as being consistent with the preexisting statute. (See San Jose Mercury-News v. Municipal Court (1982) 30 Cal.3d 498, 508 (unanimous); cf. Martin v. Hunter's Lessee (1816) 14 U.S. 304, 351-352 (Story, J.) (U.S. Constitution construed to be consistent with statutes enacted nearly contemporaneously and unquestioned for years afterward); see also Printz v. United States (1997) 521 U.S. 898, 905 (recognizing same principle).)

At the time the Constitution of 1879 was adopted, it was a misdemeanor for a "healthy beggar" to "solicit[] alms as a business." (Cal. Pen. Code, former § 647 (1872).) This statute distinguished soliciting alms from other expressions. It does not appear that anyone thought there was any inconsistency between this statute and the Liberty of Speech Clause, as there are no free-speech challenges to the statute in the reported cases.

Even more pertinent are the present section 647 and the present Liberty of Speech Clause. The old vagrancy law was constitutionally objectionable on grounds other than free speech. (See Sherry, Vagrants, Rogues and Vagabonds--Old Concepts in Need of Revision (1960) 48 Cal.L.Rev. 557, 562.) At the invitation of the Legislature, Professor Sherry drafted a replacement statute. (Id. at p. 568.) The first attempt was passed by the Legislature but vetoed by Governor Brown. (Id. at pp. 568-569 and fn. 67.) The second attempt was enacted and signed into law. (Stats. 1961, ch. 560, § 2, p. 1672.) Present Penal Code section 647, subdivision (c), forbids "accost[ing] other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms." (Cf. Sherry, supra, at p. 570.)

This statute, like the original, treats soliciting differently from other expressions. The combined speech and conduct of accosting and soliciting is only criminal if the object is "alms." To accost a person and solicit him to convert to the solicitor's religion, for example, is not prohibited. (Cf. Resp. Brief at pp. 9-10.)

Thirteen years later, the present Liberty of Speech Clause was adopted as article I, section 2 of the California Constitution, without no change from the former section 9 relevant to this issue. In that interval there were no reported cases challenging section 647 on free speech grounds. A little over a year after the constitutional revision, a free speech attack on both state and federal grounds was rejected in Ulmer v. Municipal Court (1976) 55 Cal.App.3d 263, 266. This nearly contemporaneous interpretation confirms that a statute treating "begging or soliciting alms" differently from other communications was not regarded as inconsistent with the right to express one's "sentiments on all subjects" when that right was reaffirmed in 1974.

B. Supreme Court Cases.

Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232, 237 involved an ordinance which singled out solicitation for special treatment, as does the ordinance in the present case. Indeed, the argument for content discrimination was stronger in that case, because the ordinance only applied to solicitations for charity (ibid.), rather than applying to all who seek to solicit. (Cf. supra at pp. 18-21 (discussing Heffron).) The majority opinion by Justice Traynor quotes extensively from Thomas v. Collins (1945) 323 U.S. 516 for the permissible regulation of solicitation. (Gospel Army, 27 Cal.2d at p. 247.) Although Gospel Army is, strictly speaking, a free exercise case rather than a speech case, its reliance on Thomas, Schneider, and Cantwell strongly implies that California law follows federal in this area.⁽⁶⁾

Robins relied on In re Hoffman (1967) 67 Cal.2d 845 as an example of the California Constitution's broader reach. (See 23 Cal.3d at p. 909.) Whether Hoffman survives International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672 for the definition of "public forum" is addressed by other amici. (See Amicus Brief of City and County of San Francisco, et al. at pp. 8-12.) For the issues in this brief, Hoffman clearly follows the federal cases. Chief Justice Traynor's opinion relies almost entirely on United States Supreme Court cases for the scope of permissible speech regulation in public forums. (67 Cal.2d at pp. 849-850.) It endorses time, place, and manner regulation, citing federal and California cases interchangeably (id. at pp. 852-853), an endorsement reiterated in Robins itself. (See 23 Cal.3d at p. 910.)

Hoffman predated O'Brien, but it did not take long for O'Brien to be followed in California. Crownover v. Musick (1973) 9 Cal.3d 405, 409 involved limitations on the "expressive conduct" of nude or seminude entertainment. The ordinances were challenged on both state and federal free speech grounds, among others. (Id. at p. 418.) The majority proceeds with a straight O'Brien analysis, with no mention of a divergent California standard. (Id. at pp. 426-428.) The dissent vigorously disagreed with the majority's analysis, but significantly did not assert that state constitutional standard diverged from the federal. (See id. at pp. 439-444 (dis. opn. of Tobiner, J.).)⁽⁷⁾

People v. Fogelson (1978) 21 Cal.3d 158, 161 struck down a permit ordinance. The basis of the holding was the well-plowed ground of excessive discretion in the permit-granting officials. The attack was made under both the state and federal constitutions. (Ibid.) Even while striking down this ordinance, though, the majority reaffirmed the validity of time, place, and manner regulations. (Ibid., citing Cantwell v. Connecticut (1940) 310 U.S. 296, Cox v. New Hampshire (1941) 312 U.S. 569, Gospel Army, and Hoffman). Again, the strong implication is that the test is the same under both constitutions.

Metromedia, Inc. v. San Diego (1980) 26 Cal.3d 848 directly addressed time, place, and manner restrictions and content neutrality under the California Constitution. The ordinance in that case banned off-site billboards, defined as those that did not advertise a service or product located, sold, or manufactured on the premises. (Id. at p. 856.) Even if limited to commercial signs, this ordinance would fail plaintiff's proposed test for content neutrality. One would have to read the billboard's message to determine if it was subject to the ordinance.

After rejecting the First Amendment challenge (id. at pp. 866-867), the Court turned to the California Constitution. (Id. at p. 867.) It reaffirmed the time, place, and manner test, quoting the formulation of that test from the federal cases. (Id. at p. 868.) It also adopted the O'Brien definition of content neutrality, that the interests served are "unrelated to the suppression of free expression." (Ibid.) The billboard ordinance was content neutral under the California Constitution because it

"was not enacted to prevent an advertiser from communicating his message to the public, but only to bar him from using a particularly unsightly and intrusive mode of communication." (Ibid.)

The United States Supreme Court reversed on federal First Amendment grounds. (Metromedia, Inc. v. San Diego (1981) 453 U.S. 490, 498, 521 (plur. opn.); see supra at pp. 19-20.) The high court did not purport to reverse this Court's holding that the ordinance was consistent with the California Constitution. To the extent there is a divergence, then, the two Metromedia decisions hold that the California Constitution provides somewhat greater leeway, not less, in its definition of content neutrality. At a minimum, this Court's cases hold that the time, place, and manner test, the expressive conduct test, and the definition of content neutrality for both follow the federal case law.

C. Court of Appeal Cases.

First, Alternatives does not remotely support the contention that the California Constitution diverges from the federal on this point. Indeed, it comes very close to holding the opposite.

"As used here and later in this opinion, the term 'First Amendment rights' refers to the rights guaranteed by the free speech provisions of the United States and California Constitutions alike." (Id. at p. 448, fn. 7, italics added.)

The Alternatives court did not believe there was any divergence.

Second, the holding of Alternatives that a time, place, or manner regulation distinguishing solicitation from other speech is "content based" for the purpose of the First Amendment is superficial in the extreme. The entire discussion is only two paragraphs and cites only three cases, none of which is a solicitation case. (See id. at p. 450.) Where is the discussion of all the cases affirming that solicitation may be treated differently--from Thomas, to Gospel Army, to Breard, to Heffron? Those binding precedents of higher courts are simply ignored.

Third, the rule stated in Alternatives is not uniformly accepted, but rather is contradicted by at least two other Court of Appeal cases. Ulmer v. Municipal Court (1976) 55 Cal.App.3d 263, 266, upheld a statute treating certain forms of solicitation differently. (See supra at p. 25.) The other case is Xiloj-Itzep v. City of Agoura Hills (1994) 24 Cal.App.4th 620.

Xiloj-Itzep found an ordinance to be content neutral when it distinguished solicitation from other speech but applied to all solicitation of persons in vehicles, regardless of the message of the solicitation. (Id. at pp. 636-638.) Like Alternatives, the Xiloj-Itzep court discussed federal case law, and for the specific holding it relied on decisions from three circuits. (See id. at pp. 637-638, citing ACORN v. City of Phoenix (9th Cir. 1986) 798 F.2d 1260, 1266-1267; International Soc. for Krishna Consciousness, Inc. v. Baton Rouge (5th Cir. 1989) 876 F.2d 494, 497; ACORN v. St. Louis County (8th Cir. 1991) 930 F.2d 591, 594.)

Plaintiffs attempt to dismiss Xiloj-Itzep by making the following representation to this Court:

"[The city's] argument [based on Xiloj-Itzep] is entirely unpersuasive since the plaintiffs in that case did not bring a claim under the Liberty of Speech Clause. Id. at 625 ('Appellants contend the Ordinance was adopted to prevent them from seeking daywork in the City . . . . in violation of their First Amendment rights, the equal protection clause and the right to work.'). Thus, there was no basis for any discussion of the Liberty of Speech Clause, any of which would have been superfluous dictum." (Resp. Brief at p. 38.)

This representation is, to put it diplomatically, at variance with the facts.

Attached as Appendix A to this brief are the cover page, summary of argument pages, and pages containing the "content based" argument of the plaintiffs' brief in Xiloj-Itzep.⁽⁸⁾ Plaintiffs in that case were represented by the ACLU Foundation of Southern California, the same organization that represents the plaintiffs in the present case. (Appendix A, cover.) The plaintiffs relied squarely on the California Constitution.

"Appellants challenge the constitutionality of the ordinance . . . on the grounds that it unduly burdens rights of speech and association guaranteed by article I, sections 2 and 3 of the California Constitution." (Id. at p. 1, italics added; see also id. at p. 9.)

They quoted Carreras v. City of Anaheim (9th Cir. 1985) 768 F.2d 1039, 1048, citing Alternatives for its purported state constitutional holding. (Appendix A at p. 11.)

Plaintiffs in Xiloj-Itzep stated to the court that they were using "First Amendment" as shorthand for both constitutions, as did the Alternatives court and as this Court has done. (See id. at p. 9, fn. 6.) Given that statement and the lack of any substantial argument why the California Constitution should diverge in this area, it is not surprising that the Xiloj-Itzep court adopted the same shorthand without dropping the footnote. What is surprising is to find counsel for plaintiffs so flatly misstating their own argument to this Court.

The independent state grounds argument was made to the court in Xiloj-Itzep and it was necessarily rejected in the course of deciding the case. The lack of separate discussion simply indicates that the court was unimpressed with the very weak argument. The Courts of Appeal are in conflict in this point, so stare decisis does not tip the scales one way or the other in terms of their decisions. The precedents which do need to be respected are those discussed in the earlier parts of this brief: the decisions of this Court and the United States Supreme Court. Those cases are contrary to the plaintiffs' position on every significant point.

CONCLUSION

Suggested Answer:

1. In-person solicitation for immediate payment of money is a combination of speech and conduct. (Thomas v. Collins (1945) 323 U.S. 516, 540; International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 704-705 (conc. opn. of Kennedy, J.).) An ordinance regulating such solicitation is valid if it meets the O'Brien test:

"a government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (United States v. O'Brien (1968) 391 U.S. 367, 377 (numbers added).)

2. An ordinance regulating the time, place, or manner of solicitation is evaluated under the Clark test:

"[R]estrictions of this kind are valid provided [1] that they are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels of communication of the information." (Clark v. Community for Creative Non-Violence (1984) 468 U.S. 288, 293 (numbers added).)

3. An ordinance regulating the time, place, and manner of combined speech and conduct would be valid if it met either test, although in practice the tests are substantially the same. (See id. at p. 298.)

4. An ordinance governing solicitation satisfies the third element of the O'Brien test and the first element of the Clark test if it "applies evenhandedly to all who wish to . . . solicit funds." (Heffron v. International Soc. for Krishna Consciousness, Inc. (1981) 452 U.S. 640, 649; see also Cantwell v. Connecticut (1940) 310 U.S. 296, 304.) The fact that it treats solicitations differently from other communications does not disqualify it from content neutrality. Alternatives for California Women, Inc. v. County of Contra Costa (1983) 145 Cal.App.3d 436 is disapproved.

5. As applied to nonpublic forums, the test of Krishna v. Lee, supra, 505 U.S. at p. 679, applies.

April 28, 1999

Respectfully submitted,

Kent S. Scheidegger

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Footnote 6. The Gospel Army claimed a violation of religious liberty under both the state and federal constitutions. (Id. at p. 233.)

Footnote 7. Crownover's application of O'Brien was overruled in Morris v. Municipal Court (1982) 32 Cal.3d 553, 556, 564-565, in the belief it was inconsistent with later United States Supreme Court cases, but Morris itself was effectively overruled by Barnes v. Glen Theatre, Inc., supra. (See Tily B., Inc. v. City of Newport Beach (1998) 69 Cal.App.4th 1, 18.) In any event, Crownover is still good law for the proposition advanced here--where O'Brien applies to a First Amendment challenge to an ordinance, the same analysis applies to the state constitutional challenge.

Footnote 8. Amicus apologizes for the poor quality of the copies. They were the best we could get from the microfiche.