Leafletting or littering? That was the question before the 6th U.S. Circuit Court of Appeals when it ruled May 6 that a Kentucky city could prohibit individuals from placing leaflets on cars without the owners’ consent.
In 1952, the city of Catlettsburg, Ky., passed the following ordinance:
“It shall be unlawful for any person to place or deposit or in any manner to affix or cause to be placed or deposited or affixed to any automobile or other vehicle or other automotive vehicle, any handbill, sign, poster, advertisement, or notice of any kind whatsoever, unless he be the owner thereof, or without first having secured in writing the consent of the owner thereof.”
The ordinance provides that violators be fined up to $500. Leonard Jobe, the head of the local American Legion post, apparently was unaware of the law when in 2002 he placed leaflets on car windshields on a public street. After he was fined and had paid the $500, he challenged the law.
Jobe sued in federal court, arguing the law violated the First Amendment by banning a time-honored method of communication (leafleting) on public property. He contended that leafleting cannot constitutionally be barred on public streets.
The city countered that the law was a legitimate time, place and manner restriction on free speech that was also content-neutral. In First Amendment jargon, a law is content-neutral if it applies without regard to the message of the expression. A time, place and manner restriction does not regulate or ban speech on a content basis but rather limits when and where the speech takes place, to prevent public annoyance and inconvenience.
The city also contended that a parked car is not a public forum, or an area where First Amendment protections are heightened. A federal district court upheld the ordinance as a valid time, place and manner restriction on speech.
On appeal, a three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed the lower court and upheld the law in Jobe v. City of Catlettsburg.
The 6th Circuit panel relied on the U.S. Supreme Court’s 1984 decision in Members of the City Council of Los Angeles v. Taxpayers for Vincent, in which the high court rejected a challenge to a ban on placing signs on public utility poles.
“If the public forum doctrine does not apply to public items (e.g., utility poles) permanently located on public streets and sidewalks, it assuredly does not apply to private cars temporarily parked on public streets,” the court wrote.
The appeals court also noted that the law was content-neutral in that it didn’t discriminate against leaflets with certain messages. Rather, it applied across the board to all leaflets to further the state’s interests in prohibiting litter and visual blight. The panel also recognized the city’s interest in protecting individuals’ interest in “having their private property left alone.”
One state (New York) and at least 38 other cities have similar bans, the appeals court pointed out in its opinion.
In fact, the court characterized Jobe’s conduct as littering rather than leafleting. “Unlike traditional leafleting, the recipient of an advertisement or other pamphlet on a car windshield has no choice in peeling it off the windshield after a rain shower,” the court wrote. “Unlike a telephone, a mailbox, a computer or the well-trodden path to the front door, the windshield wiper does not exist, formally or informally, to encourage communication.”
The 6th Circuit panel acknowledged that its decision conflicted with the 1999 8th Circuit decision Krantz v. City of Fort Smith. In Krantz, the 8th Circuit upheld a church’s challenge of a similar leafleting ban, ruling that the law was not narrowly tailored.
The 6th Circuit criticized the Krantz decision for determining that the leafleting in question was not littering and for not properly considering the U.S. Supreme Court’s decision in Taxpayers for Vincent.
“While Krantz perhaps makes the best case for invalidating an ordinance like this one now, it is not an analysis that we can accept,” the 6th Circuit panel wrote.
Matthew J. Wixsom, the attorney who represented the city, praised the 6th Circuit’s decision for coming to the “proper constitutional conclusions.”
He emphasized that the ordinance does allow car owners to grant permission for handbills by placing a sign in their car. He also said there was “absolutely no content discrimination in the ordinance” because it applied to all handbills.
“Windshields have never been a form of communication and, just as there is no constitutional right to force a leaflet into someone’s pocket, there also is no constitutional right to force your ideas on someone else,” Wixsom said.
The split between the 6th and 8th Circuits means that this issue might need to be resolved one day by the U.S. Supreme Court.