Editor’s note: Horry County Council passed on Oct. 2 an ordinance limiting distribution of free newspapers, TMCs and shoppers. This column gives a legal perspective on their action.
As
newspapers have faced economic challenges, many have developed slimmed
down versions that feature a few stories and both display and insert
advertising. These new publications are offered for free, and are often
delivered to individual homes without the homeowner requesting such
delivery.
But some homeowners see the newspapers as litter. In Horry County, for example, several homeowners have complained
about the free newspapers that are deposited on their lawns. This is
not the first time that this issue has arisen: in 2016, the county considered adding mandatory fines to its littering ordinance, but dropped the proposal after local newspapers raised First Amendment concerns.
This has been an issue in other areas, including Mobile, Ala.; Middlesex County, Conn.; Evanston, Ind.; Ridgewood, N.J.; New York City, N.Y.; Providence, R.I.; Lewisville, Texas; and Salt Lake City, Utah.
But
municipalities that have tried to fine newspaper publishers under
littering laws for distribution of such papers have generally seen the
fines dismissed in court on First Amendment grounds.
These
decisions are based on U.S. Supreme Court cases that held that
municipal governments could not use littering laws to restrict
distribution of political, union and religious handbills and pamphlets
on the streets (Schneider v. New Jersey, 1939) and to individual homes (Martin v. City of Struthers, Ohio, 1943). In 1982 the federal Third Circuit Court of Appeals ruled
that an ordinance barring distribution of advertising material to homes
without the owner’s permission was unconstitutional, and in 1999 the
Georgia Supreme Court struck down a local ordinance prohibiting the free distribution of printed material in yards, driveways and porches.
In 1994 the Wyoming Supreme Court used a similar rationale to strike down
restrictions on distribution of free newspapers on First Amendment
grounds. In 2000, the Ohio Court of Appeals cited the First Amendment in
reversing the littering conviction of a woman who had delivered a free newspaper to peoples’ homes.
And while no South Carolina court appears to have addressed the issue, the state’s attorney general has twice determined—in 2005 and again in 2006—that
distribution of unsolicited newspapers and advertising circulars to
driveways or streets outside private homes could not be prosecuted under
the state’s anti-littering statute
without violating the First Amendment. A 2016 bill to amend the statute
to ban unsolicited newspapers and advertising circulars did not progress in the legislature.
Despite
the majority of court decisions striking down use of littering laws
against distribution of free newspapers, earlier this year the federal
Sixth Circuit Court of Appeals reversed a lower court decision and held that a publisher was not entitled to an injunction
against a city ordinance that barred distribution of unsolicited
materials on driveways, while allowing such delivery in other ways, such
as on porches or to door mail slots. The court held that the ordinance
likely did not violate the First Amendment because it allowed for
alternative delivery methods. After this appellate ruling, the trial
court subsequently granted summary judgment to the city. The summary judgment ruling is now being appealed.
Some communities have reached agreements with local newspapers over these issues. In Michigan a lawsuit brought by the Detroit Free Press against Orion Township in Oakland County over enforcement of its littering ordinance against distribution of a free newspaper was settled in May
with an agreement to facilitate homeowners who wished to opt out from
delivery. Jefferson Parish, Louisiana worked with local publishers to
initiate a program that started in July and allows homeowners to opt out of receiving such materials.
Communities
must recognize, as Horry County apparently has, that the First
Amendment protects distribution of free newspapers and advertising
circulars. But publishers must realize that indiscriminately tossing
these materials onto peoples’ lawns and driveways sometimes
unnecessarily antagonizes readers. It seems that the best solution is
for publishers and community leaders to come to an understanding on how
such materials will be distributed, and how residents may stop receiving
them.
