I dissent. In my view the Sacramento County ordinance is reasonable, not broader than constitutionally permissible, and constitutes a necessary and proper exercise of the police power of the county.
We must balance the various community interests in passing on the constitutionality of local regulations of the character involved here, always keeping in mind that the freedom of the First Amendment occupies a preferred position. (Saia v. New York (1948) 334 U.S. 558, 562 [92 L.Ed. 1574, 1578, 68 S.Ct. 1148].) It must be remembered, however, that “pure speech” is not involved here, but rather acts and conduct incident to such expression. (See Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 152 [22 L.Ed.2d 162, 168, 89 S.Ct. 935].) “[A]cts and conduct incidental to any speech may be regulated. The fact that people assert First Amendment rights does not place them above the law and immunize them from obeying state laws, so long as such state laws are enforced fairly and without discrimination. [Citations.]” (People v. Uptgraft (1970) 8 Cal.App.3d Supp. 1, 5-6 [87 Cal.Rptr. 459].)
As a general proposition, a person (or persons) has no First Amendment right to obstruct traffic in a public street in violation of a penal law or regulation which prohibits such conduct. (See Shuttlesworth v. Birmingham, supra, 394 U.S. at p. 152 [22 L.Ed.2d at p. 168]; Walker v. Birmingham *772(1967) 388 U.S. 307, 316 [18 L.Ed.2d 1210, 1217, 87 S.Ct. 1824]; Cox v. Louisiana (1965) 379 U.S. 536, 554-555 [13 L.Ed.2d 471, 483-484, 85 S.Ct. 453]; see also Food Employees v. Logan Valley Plaza (1968) 391 U.S. 308, 320 [20 L.Ed.2d 603, 613, 88 S.Ct. 1601]; Edwards v. South Carolina (1963) 372 U.S. 229, 236 [9 L.Ed.2d 697, 702-703, 83 S.Ct. 680]; Pain v. Municipal Court (1968) 268 Cal.App.2d 151 [73 Cal.Rptr. 862]; People v. Huss (1966) 241 Cal.App.2d 361, 370 [51 Cal.Rptr. 56]; People v. Horton (1970) 9 Cal.App.3d Supp. 1 [87 Cal.Rptr. 818]; cf., Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 287 [29 Cal.Rptr. 1, 379 P.2d 481].) Thus, a municipality has the right, within reason, to regulate the use of city streets and other facilities to assure the safety and convenience of the people in their use.
In Cox v. Louisiana, supra, 379 U.S. 536, 555 [13 L.Ed.2d at page 484], the court states: “From these decisions certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection.” (Italics added.)
The ordinance is limited to conduct related to the free and unobstructed flow of traffic on the public roadways and I find no uncontrolled suppression of the privileges accorded under the First Amendment in forbidding the activities of petitioner here, which I find beyond the constitutionally protected areas of freedom of speech and press.
One thrust of the majority opinion is that the ordinance sweeps up all persons who conduct any hawking, peddling or giving away of material on the sidewalks along the public streets. The ordinance does not mention sidewalks, nor does it expressly forbid such activity on the sidewalk. Its prohibition is solely against such activity along or upon the public highway. A reasonable interpretation which we must give to the ordinance would be to forbid only that activity at any place along the highway where it would interfere with the free flow of traffic. Certainly that activity not directed to the highway traffic on parts of a sidewalk along the highway is not proscribed. The majority opinion can be construed as holding the *773buildings facing the sidewalks adjacent to the highway also are swept up by the language of the ordinance. I do not so read the ordinance.
In Lorenson v. Superior Court (1950) 35 Cal.2d 49, 60 [216 P.2d 859], the court states: “To comply with the constitutional requirement of due process of law, the crime for which a defendant is being prosecuted must be clearly defined, but it is only necessary that the words used in the statute be well'enough known to enable those persons within its reach to understand and correctly apply them. ‘To make a statute sufficiently certain to comply with constitutional requirements it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited.’ [Citations.]
“Although higher standards of certainty will be required of penal than of civil statutes [citation], a statute is sufficiently certain if it employs words of long usage or with a common law meaning, ‘notwithstanding an element of degree in the definition as to which estimates might differ.’ [Citations.] For example, the courts have upheld statutes employing such terms as: ‘to make a diligent effort to find the owner’ [citation]; ‘unreasonable speed’ [citation]; ‘unjustifiable physical pain or mental suffering’ [citation]; ‘practice law’ [citation]; and ‘to the annoyance of any other person’ [citation].”
Again in Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 405 [89 Cal.Rptr. 78], the court states: “It is true that ‘[c]ivil as well as criminal statutes must be sufficiently clear as to give a fair warning of the conduct prohibited, and they must provide a standard or guide against which conduct can be uniformly judged by courts. . . .’ [Citations.] However, ‘ “[reasonable certainty is all that is required. A statute will not be held void for uncertainty if any reasonable and practical construction can be given its language” [Citation.] It will be upheld if its terms may be made reasonably certain by reference to other definable sources.’ (American Civil Liberties Union v. Board of Education, 59 Cal.2d 203, 218 [28 Cal.Rptr. 700, 379 P.2d 4]; People v. Victor, 62 Cal.2d 280, 300 [42 Cal.Rptr. 199, 398 P.2d 391].) ‘[A] statute is sufficiently certain if it employs words of long usage or with a common law meaning, “notwithstanding an element of degree in the definition as to which estimates might differ.” ’ [Citations.]”
It is well settled that mathematical certainty is not required; some matter of degree is involved in most penal statutes. (People v. Belous (1969) 71 Cal.2d 954, 960 [80 Cal.Rptr. 354, 458 P.2d 194].)
The language challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. (See State v. Taylor (Hawaii 1967) 425 P.2d 1014, 1021-1023; cf., *774Adderley v. Florida (1966) 385 U.S. 39, 43 [17 L.Ed.2d 149, 153, 87 S.Ct. 242].) The ordinance is directed toward conduct rather than expression. It prohibits activity along or upon a roadway that will interfere with the free flow of traffic. This is clear by a reading of section 2 of the ordinance. In Boyce Motor Lines v. United States (1952) 342 U.S. 337, 340 [96 L.Ed 367, 371, 72 S.Ct. 329], in upholding a regulation which required avoidance of driving of flammables through congested thoroughfares “so far as practicable, and, where feasible,” the court stated:
“A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.”
I find the ordinance is not vague or uncertain, that it is reasonable, that it is limited in scope, and constitutes a valid legislative enactment in furtherance of the public safety and welfare without abridging basic First Amendment freedoms. (See Cox v. Louisiana, supra, 379 U.S. 536, 554-555 [13 L.Ed.2d at pp. 483-484]; Cameron v. Johnson (1968) 390 U.S. 611, 616 [20 L.Ed.2d 182, 187]; Pain v. Municipal Court, supra, 268 Cal.App.2d 151; see also Landry v. Dailey (N.D.Ill. 1968) 280 F.Supp. 938, 950-952, 967; cf., In re Cox (1970) 3 Cal.3d 205 [90 Cal.Rptr. 24, 474 P.2d 992].)
I would affirm the order discharging the alternative writ of prohibition and denying the request for a peremptory writ of prohibition.
Appellant’s petition for a hearing by the Supreme Court was denied June 17, 1971. Burke, J., was of the opinion that the petition should be granted.