People v. Uffindell

90 Cal.App.2d Supp. 881 (1949) THE PEOPLE, Respondent,

v.

HOWARD MARTIN UFFINDELL, Appellant.

California Court of Appeals.

Feb. 1, 1949. Holt & Macomber for Appellant.

Jean F. DuPaul, City Attorney, Hoyt E. Ray, City Prosecutor, and Jordan Neville Peckham, Assistant City Prosecutor, for Respondent.

BURCH, J.

The appellant operates an auto repair shop. He advertised his business by affixing handbills to automobiles [90 Cal.App.2d Supp. 882] (of others) parked on the public streets of San Diego. While so engaged he was arrested, charged, tried and convicted of violating a penal ordinance of the city which provides, so far as material here, that ... "it shall be unlawful to deposit ... in or on any motor vehicle parked on any street in the City of San Diego ... any ... advertising matter." The question is whether the application of the ordinance to the appellant's activity was, in the circumstances, an unconstitutional abridgement of the freedom of the press and of speech, or an unwarranted interference with the conduct of a lawful business by the municipal authority.

Our review of the decisions indicates to us that one who bases his defense upon the right of freedom of the press is in a preferred position before the courts. That right is one of the four important guarantees of the First Amendment of the federal Constitution, and along with freedom of speech, freedom of religious belief, and freedom of assembly, controls, through the Fourteenth Amendment, states and their political subdivisions. When such a claim of right is set up to justify the violation of a municipal ordinance that regulates the use of the streets in the interests of the movement of people and property, the regulation will be carefully examined to insure that the restraint of freedom is reasonable in the interests of the general welfare and the convenience of the public. These considerations have led the courts to hold that a police regulation, though presumptively valid, will fall if it seeks to prevent the distribution in an orderly manner to willing recipients of handbills publicizing ideas and opinions, or meetings where matters of religion, politics, laws or social questions are to be discussed. When a distribution, however, is to advertise a private business conducted for profit, unconnected with the stated freedoms of the First Amendment, the rule is otherwise.

[1] We find the rule to be that the freedom of press guaranteed by the First Amendment of the federal Constitution, and made applicable to the states by the Fourteenth Amendment, has no application to the distribution of handbills on the streets for purely commercial advertising. (Valentine v. Christensen, 316 U.S. 52, 54 [62 S.Ct. 920, 86 L.Ed. 1262]; Jamison v. Texas, 318 U.S. 413, 417 [63 S.Ct. 669, 87 L.Ed. 869]; Murdock v. Pennsylvania, 319 U.S. 105, 108 [63 S.Ct. 870, 891, 87 L.Ed. 1292, 146 A.L.R. 81].)