A&A: Can Police Stop Distribution of Advertising Fliers?
May 28, 2010 by FAC
Filed under Asked & Answered
Q: I own a small business and was stopped by a police officer while delivering fliers door to door. I was not contacting anyone or selling door to door, I was simply distributing fliers to let people know about my business. The officer told me I could not do this. Isn’t the distribution of fliers a right protected by the first amendment?
A: First, you should check to see if there is a local ordinance that prohibits such door-to-door distribution of commercial fliers. If there is no ordinance prohibiting this activity, then the police officer had no grounds to stop you from doing so in the first place.
If there is such an ordinance, then the question is whether the ordinance is constitutional. With respect to leafleting, the Supreme Court has held that such form of communication, whether for political, religious, or commercial purposes, holds a venerable place in American history, and that “pamphlets and leaflets … have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.” Jobe v. City of Cattlesburg, 409 F.3d 261, 264 (6th Cir. 2005), citing Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).
In Martin v. City of Struthers, 319 U.S. 141, 143, 149 (1943), the Supreme Court struck down a ban on door-to-door leafleting, stating that the First Amendment freedom of speech “embraces the right to distribute literature, … and necessarily protects the right to receive it. The privilege may not be withdrawn even if it creates the minor nuisance for a community of cleaning litter from its streets. … Yet the peace, good order, and comfort of the community may imperatively require regulation of the time, place and manner of distribution.”
Likewise, in Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150, 168 (2002), the Court invalidated licensing requirements for door-to-door solicitors and leafleters upon a challenge brought by a religious organization. However, there are several cases where the Court has upheld restrictions on leafleting, indicating that where there are reasonable time, place and manner restrictions, such bans are constitutionally permissible. See Frisby v. Schultz, 487 U.S. 474, 488 (1988) (upholding ban on picketing in front of a targeted residence); Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 654-55 (1981) (upholding regulation restricting leafleting at state fair to assigned booths).
In Frisby, the Court upheld an ordinance banning picketing on public sidewalks in certain residential neighborhoods, despite the fact that the sidewalks were determined to be public fora. The Court found that, under the “time, place and manner” test applied to public fora – the government may impose reasonable time time, place and manner regulations in public fora, but any such restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication — the restrictions were a permissible means of protecting the unwilling listener in a private home. ”Although in many locations, we expect individuals simply to avoid speech they do not want to hear, … the home is different. ” Frisby, 487 U.S. at 484. ”Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom.” Id. at 485.
The Court cautioned that even in cases where it had invalidated solicitation bans, the outcome might have been different had the ban been more narrowly tailored. ”In all such cases, we have been careful to acknowledge that unwilling listeners may be protected when within their own homes. In Schneider, for example, in striking down a complete ban on handbilling, we spoke of a right to distribute literature only ‘ to one willing to receive it.’ Similarly, when we invalidated a ban on door-to-door solicitation in Martin, we did so on the basis that the ’home owner could protect himself from such intrusion by an appropriate sign ” that he is unwilling to be disturbed.”‘ … We have ’never intimated that the visitor could insert a foot in the door and insist on a hearing.’ … There simply is no right to force speech into the home of an unwilling listener. ” Id.
The court in Jobe upheld a ban on placing leaflets on car windshields, as the court found that the ordinance did not regulate a public forum, and was a content-neutral restriction on the time, place and manner of speech since the regulation was narrowly tailored to address problems of littering, visual blight, and unauthorized use of private property, and left open ample alternative avenues for distributing leaflets in an inexpensive manner, such as face-to-face on a public street and door-to-door in a neighborhood. Jobe, 409 F.3d at 267-75.
As you can see, the analysis required is necessarily case-specific. However, as demonstrated by the above cases, if there is such a law in the city where you are attempting to distribute your fliers, the law must be narrowly tailored to serve some significant governmental interest, as well as offer ample alternatives for distributing your advertisements to willing recipients.
