Remer v. City of El Cajon

California Court of Appeal Oct 23, 1975 No. Civ. 14163Published

Before: Brown (Gerald)

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Holding. The court held that a municipal ordinance imposing a blanket prohibition on the placement of newspaper vending machines on public sidewalks is unconstitutionally overbroad.

Issues

Whether a municipal ordinance banning newspaper vending machines on public sidewalks violates the First Amendment right to freedom of the press.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The challenged ordinance unconditionally bans newsracks from public sidewalks, a place traditionally used for the exercise of First Amendment rights”

“As it stands, the blanket prohibition, without more, makes the ordinance overbroad and unconstitutional on its face”

“Removal of a reasonable means of distribution cannot be justified by the alternative means which remain”

Opinion

BROWN (Gerald), P. J.

The defendants, City of El Cajon et al, appeal a judgment which declared El Cajon Municipal Code section 25-7 unconstitutional, and permanently enjoined its enforcement.

In August 1973, the El Cajon City Council adopted Ordinance No. 2651 adding section 25-7 to the Municipal Code. Plaintiffs Lariy Remer, Doug Porter et al published a newspaper, The Door to Liberation, which they distributed predominantly through coin-operated vending machines placed on public sidewalks in El Cajon. Enforcement of the ordinance had a seriously adverse effect on circulation of The Door to Liberation.

Section 25-7 reads:

“Sale of newspapers, Magazines, etc.

“Nothing contained in this article shall prohibit the sale or offering for sale, or the possession or custody of newspapers, magazines, periodicals

[443]

or other printed matter commonly sold by news vendors, occurring upon the sidewalk and not in or upon that portion of a street, highway or roadway used for vehicular traffic. However, notwithstanding anything to the contrary herein, it shall be unlawful for any person to place or maintain within, in, on, upon, or over any public parkway or sidewalk, any stand, rack, holder, vending machine, self-service stand, coin operated box, storage unit, or other device for the purpose of offering for sale, vending, distributing, or giving away, newspapers, periodicals, or other printed matter, or to authorize, cause or permit any such placement or maintenance.” ''

The City of El Cajon contends the ordinance is valid as an attempt to improve safety and aesthetics, and to avoid discrimination favoring distribution of newspapers over other merchandise.

We recognize the city’s limited right under its police power to regulate potentially injurious methods of communication. However, such restrictions must be reasonable and necessary (Wollam v.

City of Palm Springs,

59 Cal.2d 276, 284 [29 Cal.Rptr. 1, 379 P.2d 481]). The cure of slight inconveniences or annoyances will not justify the regulation

Remer v. City of El Cajon

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