Metropolitan News-Enterprise


Monday, October 5, 2009


Page 1


Court: Litter Prevention Does Not Justify Anti-Leaflet Ordinance


By STEVEN M. ELLIS, Staff Writer


The city of San Clemente’s interest in preventing street litter did not justify an absolute prohibition on placing leaflets on windows of unoccupied cars parked on city streets, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Reasoning that the city needed to show the leafleting generated more than a minimal amount of additional litter, and rejecting the city’s argument that it was protecting car owners’ private property rights, the panel ordered that the city be preliminarily enjoined from enforcing the ordinance.

Steve Klein and others sought the injunction as part of a federal suit alleging the ordinance violated their state and federal constitutional rights to free speech.

Confronted by Deputies

The plaintiffs sued after they were confronted by sheriff’s deputies in June 2007 while distributing leaflets expressing their views on immigration policy. Klein and the others initially gave the leaflets to passing pedestrians, but later started placing them under the windshield wipers of unoccupied vehicles on the street.

They stopped distributing the leaflets after the deputies advised them that they would be cited if they continued.

The ordinance prohibits throwing or depositing any commercial or noncommercial advertisement in or on any vehicle, but allows distribution of noncommercial advertisements by hand in public places if the recipient willingly accepts.

U.S. District Judge A. Howard Matz denied the plaintiffs’ motion for a preliminary injunction, concluding they could not show a likelihood of success in their case because the ordinance was narrowly tailored to serve the city’s significant interest in litter prevention and promote “esthetic values.”

Balance of Equities

However, Judge Stephen Reinhardt wrote on appeal that Matz’s conclusion was incorrect because “none of the interests asserted by the City were proven sufficiently weighty to justify the restrictions placed on Klein’s right to express his political views.”

The judge further opined that Klein and the others had shown that they would suffer irreparable harm without an injunction, that the balance of equities tipped in their favor and that an injunction was in the public interest, and he directed Matz to issue the injunction on remand.

The city had argued on appeal that by only prohibiting “the placing of materials on unoccupied materials where it results in litter” it was targeting “the precise problem that it wished to correct.”

But Reinhardt faulted the city for failing to show a nexus between “leaflets placed on vehicles and a resulting substantial increase in litter on the streets.”

Observing out that the city failed to provide any evidence that placing leaflets on parked cars resulted in litter, he wrote that “[p]reventing ‘one or two’ leaflets from being placed on city streets does not constitute a significant government interest.”

The judge similarly rejected the city’s contention that its “interest in preserving an individual’s right to decide how and when their private property will be used” justified the ordinance.

‘Acceptable Burden’

After noting that the U.S. Supreme Court determined with respect to unsolicited mailers in Bolger v. Youngs Drug Prods. Corp. (1983) 463 U.S. 60 that the “short, though regular, journey from mail box to trash can…is an acceptable burden” on recipients, he said that “[t]he mere fact that an unwilling recipient must take the unsolicited leaflet from her windshield and place it in the garbage cannot justify an across-the-board restriction.”

Reinhardt also pointed out that the California Supreme Court has yet to decide whether vehicle leafleting bans are compatible with the state constitution’s Liberty of Speech Clause, but he opined that the state’s high court would likely determine that such bans could not be justified by an interest in protecting recipients’ property rights.

Second U.S. Circuit Court of Appeals Judge Roger J. Miner, sitting by designation, and Judge Marsha S. Berzon joined Reinhardt in his opinion.

The case is Klein v. City of San Clemente, 08-55015.


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