Court: Court of Appeals of Oregon; April 21, 1993; Oregon; State Appellate Court
Defendant seeks to reverse his convictions under ORS 221.350 for selling 'joke books' on a city sidewalk, violating section 4.860(d) of the Eugene Code. This provision prohibits setting up or operating a sale display in certain public areas if it causes congestion. Section 3.338 requires a license for sidewalk vending, allowing licenses only for specific items such as food and flowers. The defendant did not have or apply for a license and argues that section 3.338(e) violates constitutional protections related to equal protection, privileges and immunities, and free speech.
The city asserts a lack of jurisdiction for the appeal, arguing that the constitutional challenge relates to section 3.338, not the ordinance under which the conviction was obtained (section 4.860(d)). Citing a precedent, the court suggests that provisions must be read together, indicating that the licensing and penal provisions are interconnected. The court asserts that analyzing section 3.338 is relevant to understanding the constitutionality of section 4.860(d), as the city would not prosecute someone for a licensed activity.
Additionally, the city claims the defendant incorrectly assumes he can challenge EC 3.338 without evidence. However, the defendant's testimony reveals that there are other ways to obtain permission for sidewalk vending, as demonstrated by his regular sales at the 'Saturday Market,' which are authorized by the city. The court indicates it will not limit its jurisdiction narrowly and will consider the interconnected nature of the ordinances in this appeal.
Defendant has not presented evidence of being denied a permit under EC 3.338, which could impact the resolution of his challenge to the ordinance, although the city does not emphasize this aspect in its arguments. Nonetheless, the defendant is contesting the ordinance's constitutionality. The court has jurisdiction and does not need to decide on the procedural validity of the demurrer or motion to dismiss, as the constitutional issues were adequately presented through a motion for judgment of acquittal.
Defendant cites *City of Hillsboro v. Purcell* to argue that restrictions on street vending types allow the ordinance to infringe on protected expression, claiming the ordinance is overbroad and violates Article I, section 8. In *Purcell*, the court found a city ordinance criminalizing door-to-door solicitation overbroad, as it affected communicative behavior involving protected expression. The city contends that the ordinance only targets commercial solicitation while exempting community or religious activities, but council meeting minutes do not reflect any such distinctions.
The ordinance is deemed overbroad because it prohibits all solicitation for any purpose, preventing individuals from soliciting support through the sale of goods in residential areas, exceeding the regulation's intended scope. The court finds this situation parallel to *Purcell*, rejecting the dissent's and city's distinctions regarding the ordinances, as the critical issue remains that the Eugene ordinance restricts the sale of the defendant's books, thereby infringing on protected expression similarly to the Hillsboro ordinance.
The legislation in question allows for the sale of certain items while prohibiting others, thus demonstrating a differential treatment of commercial speech based on content. The city argues that its regulation focuses on the effects of speech rather than speech itself, which is permissible under Article I, section 8. However, both the majority and special concurrence in Moser v. Frohnmayer emphasize that any regulation of speech effects must identify a substantial harm and specifically target those harmful effects. The city's ordinance fails to justify why the sale of joke books is harmful compared to other permissible items like balloons, resulting in a regulation based on content rather than effects.
The dissent’s argument that different activities can be regulated differently does not apply here, as the ordinance regulates similar types of commercial and communicative activities differently based on the nature of the items sold. This constitutes a content-based regulation, which is prohibited by Article I, section 8. The court cites Ackerley Communications, Inc. v. Mult. Co. to support the assertion that content-based distinctions cannot be justified by time, place, and manner regulations.
Ultimately, the Eugene ordinance is deemed unconstitutional under Article I, section 8, making it unnecessary to address other arguments presented by the defendant. The court notes that the defendant’s inability to obtain a license, which was not admitted as evidence, does not affect the ruling. While the First Amendment issues are not directly addressed, the recent U.S. Supreme Court decision in City of Cincinnati v. Discovery Network, Inc. is acknowledged as relevant. The appeals are reversed.
The city implemented regulations that effectively banned newsracks dispensing commercial publications while permitting those for non-commercial publications. The Court found this regulation violated the First Amendment, rejecting the city's arguments that the ban was justified by interests in safety and aesthetics. The Court acknowledged the city's concern for safety and aesthetics but deemed it an insufficient rationale for discriminating against commercial speech, which is similarly non-harmful and minimally impacts the overall number of newsracks. The city based its argument on the premise that commercial speech holds low value, asserting that allowing more valuable publications did not undermine its claims. The Court disagreed, stating the city underestimated the value of commercial speech and that the aesthetic impact of both types of newsracks was equivalent. The city’s primary concern regarding the total number of newsracks did not justify a selective ban on commercial ones, as all newsracks equally contributed to the issue. Although the city claimed its regulation was content-neutral, the basis for the regulation was the distinction in content between commercial and non-commercial speech, leading the Court to conclude that the selective ban on commercial newsracks lacked a neutral justification.
The city's newsrack policy fails to be content-neutral and is not narrowly tailored, thus it cannot be justified as a legitimate time, place, or manner restriction on protected speech, regardless of alternative communication channels. The dissent referenced Purcell's assertion that governments can regulate commercial speech more significantly than other protected speech, which is a summary of First Amendment principles rather than an interpretation of Article I, section 8. This interpretation may be affected by the ruling in City of Cincinnati. Additionally, the court noted that the city improperly prohibited unsolicited door-to-door sales, although reasonable limitations on such solicitations could still be implemented. The city has yet to establish any regulations on door-to-door solicitations, leaving open the possibility for future regulation.
