|Legal Opinion: |
Text of Document: March 9, 1993
I have reviewed the proposed handbill ordinance for its legal soundness. I have some problems with it; rather, I think the courts would have some problems with it.
Before I get into the specific legal problems with your proposed ordinance, let me observe that it only represents an amendment to the much more comprehensive ordinance found in the city's municipal code. That ordinance itself appears to reflect language found in the Model NIMLO ordinance on handbills, which is quite old. In fact, the NIMLO Model Ordinance was apparently written during a period when the U.S. Supreme Court made a distinction between the protection given non-commercial and commercial speech.
The Tennessee Supreme Court in H. L. Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444 (1979), a case on municipal regulation of handbills, discusses the erosion of that distinction. In my opinion, there has been a further erosion of the distinction since that case was decided in 1979. I will be glad to explain the legal basis for my opinion, but here let me simply measure the ordinance against the one at issue in H. L. Messengers; that's where it's most likely to run into trouble.
Section 1 of the ordinance amends Section 8-132 of the municipal code by replacing that section with the following section:
8-132. Placing handbills or newspapers on vehicles. (1) No person shall throw, deposit, or distribute any commercial or noncommercial handbill or newspaper in or upon any private vehicle; provided, however, that it shall not be unlawful in any public place for a person to hand out or distribute, without charge, to the receiver thereof, a non-commercial handbill or newspaper to any occupant of a vehicle who is willing to accept it.
This provision is probably drafted on the form of Section 8-105 of the Model NIMLO ordinance on handbills.
The second clause of that provision permits a person to "hand out or distribute without charge" to persons in vehicles non-commercial handbills or newspapers.
From a practical and definition standpoint alone, there is a problem in that provision. Section 8-101(6) of the municipal code defines "Newspaper." A component of the definition is that it is "sold to the public." How is a person supposed to hand out without charge a newspaper, as the term is defined in the municipal code?
In H.L. Messengers, a provision of Section 2 (b) of the ordinance at issue in that case banned the "Handing out, distributing, or selling commercial handbills in any public place." The Court had this to say about that provision:
So much of Section 2 of the ordinance as bars the distribution or sale of "any commercial handbill in any public place" violates the First Amendment to the Constitution of the United States and Article I, Sec. 19 of the Constitution of Tennessee. The First Amendment embraces not only the right to speak, to publish, and to print, but also the right to circulate, to receive, and to read. [Citation omitted.] Further, this portion of the ordinance is not content neutral.
That language probably applies equally well to Section 8-130 of your proposed ordinance.
Section 2 of the ordinance amends section 8-132 of the municipal code by substituting several provisons governing the distribution of handbills at private residences.
- Subsection (1) is, on its face, confusing. It says that:
No person shall throw, deposit or distribute any newspaper, commercial or noncommercial handbill in or upon private premises which are inhabited, except by handling [handing?] or transmitting any such handbill directly to the owner, occupant or other person in or upon such private premises. [Emphasis is mine.]
That provision starts out regulating newspapers and handbills, but ends up regulating only handbills. Which is it to be? If it is both newspapers and handbills, there is no way the courts will require the "distributing" of newspapers by delivery into the hands of persons in "inhabited" premises. If it's only handbills, the provision might stand, except for what is perhaps a fatal flaw: confusion over its application to "inhabited" and uninhabited homes. A person can't deliver a handbill (and perhaps a newspaper) to an inhabited residence apparently unless he deposits in the hands of somebody there. What about uninhabited homes? The ordinance is subject to an interpretation that a person can deliver a handbill (and perhaps a newspaper) to an uninhabited home at will. If that sounds like a silly problem, the H.L. Messengers Court ripped the ordinance in that case over the confusion a person would have over whether a residence was inhabited or uninhabited.
- Subsection (3) might be alright. H.L. Messengers struck down a similar provision in the ordinance at issue there, but that provision wasn't content neutral because it exempted several categories of material. This provision doesn't suffer from that defect. H.L. Messengers also declared that:
We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even "good ideas" on an unwilling recipient...
- Subsection (4) Again, how is a person supposed to know if a residence is inhabited or uninhabited. The Court in H.L. Messengers pointed to the fact that residences generally bear no distinguishing characteristics as to permit a person to determine whether is vacant or not. This section is also highly confusing, containing a prohibition upon leaving commercial or non-commercial handbills and newspapers at inhabited residences unless the leaving is made into the hands of somebody there, yet in the next breath, declaring that it is alright to leave them there without the leaving being made into the hands of somebody there, unless the somebody there objects to the leaving. Arguably, this whole subsection is superfluous in light of subsection (3).
There are more problems with the ordinance, including a foundation of definitions, but this will do for now.
I'm enclosing a copy of H.L Messengers. In addition, I will be glad to find some handbill ordinances that are both practical and legally solid. That isn't an easy job. In fact, the courts have so muddled the law governing municipal regulation of advertising of any kind that no municipality knows whether ordinances it has in this area are any good.
Sidney D. Hemsley
Senior Law Consultant