HomeMy WebLinkAboutAgenda Report - November 20, 1991 (83)OF
CITY OF LORI
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AGENDA TITLE: Report Relating to Unwelcome Advertising/Solicitations
MEETING DATE: November 20, 1991
PREPARED BY: City Attorney
RECOMMENDED ACTION: Council consideration and direction.
BACKGROUND INFORMATION: The topic of unsolicited distribution of
literature on abortion has been discussed in
recent City Council meetings, and the Council
has directed that a report on the legal issues be prepared. Research has
convinced me that the City's authority to regulate distribution of any
material subject to First Amendment protection is very limited, and any
attempt to single out literature on abortion would almost certainly be
unconstitutional.
This situation is difficult because of the sincere beliefs on both sides
of the issue. However, the fact remains that distribution of information
on abortion (both for and against) is an activity protected by the First
Amendment according to the U. S. Supreme Court (Bigelow V. State of
Vir iniaL 421 U.S. 809). This means that although certain information or
photographs might be deeply disturbing to some people, the City is
required to treat it the same as any other legally permissible form of
free speech. Although "commercial" speech receives somewhat less
constitutional protection than "pure" free speech, an ordinance on
handbill distribution would be required to cover distribution of such
literature in much the same way as handbills for a political candidate or
advertisements for a supermarket.
Admittedly, Lodi presently has an ordinance prohibiting distribution of
"advertising matter" on private property. Lodi Municipal Code Section
9.08.010 says in pertinent part:
"It is unlawful for any person to distribute or throw,
or procure anyone to distribute or throw, upon any
private yard, lawn, driveway, sidewalk, porch or steps
of any residence ... or in or upon any motor vehicle
or other vehicle in the city, any advertising sample,
handbill, dodger, circular, booklet or other notice of
commercial advertising ..."
APPROVED:
THOMAS A. PETERSON
recycled paper
• Report Relating to Unwelcome Advertising/Solicitations
November 20, 1991
Page Two
This ordinance has been on the books for many years. However, more than a
year ago, I advised City departments that this ordinance was probably
unconstitutional and recommended against enforcement. This was based on
such cases as Martin v. City of-Struther 319 U.S. 141, and Van NuVs
Publishing Company v. 1ty of ThousandOaks 97 Cal.Rptr. 777. In the
atter case, the California Supreme Court overturned a city ordinance much
like Lodi's because it violated free speech rights. Ordinances even less
restrictive on free speech, such as a limit on canvassing by civic groups
after 6:00 p.m. have been overturned (Connecticut Citizens Action Group v.
Town of Southington 508 F.Supp, 43).
It has also been suggested by citizens that all literature of this nature
be first inspected and certified for distribution by some public officer
such as the city clerk. This would also probably be unconstitutional.
Where the content of public communication must first be cleared with a
government censor, it probably constitutes "prior restraint" and may
violate First and Fourteenth Amendment guarantees (Largent v. Texas 318
U.S. 418). Courts have said repeatedly that any benetits of such
censorship are outweighed by the risk to constitutional guarantees of the
right to speak one's mind.
Questions have also arisen over whether graphic photos of aborted fetuses
are "obscene". While they may be highly offensive to some people, I do
not believe this type of literature can be called "obscene" in a legal
sense.
Penal Code Section 311(a) defines "obscenity" as follows:
" ... (the) matter taken as a whole, which to the
average person, applying contemporary statewide
standards, appeals to the prurient interest, and is
matter which, taken as a whole, depicts or describes
in a patently offensive way sexual conduct; and
which, taken as a whole, lacks serious literary,
artistic political, or scientific value." (emphasis
supplied
This definition refers specifically to sexual conduct. It is fairly
clear (at least to me) that this definition does not include the photos
found in abortion literature.
This does not mean the City cannot adopt reasonable "time, place and
manner" regulations on distribution of advertising or literature in
general (see Martin v. City of Struther at page 146, 147). However, it
should apply uniformly to all material, from abortion literature to ads
for gardening services. Courts have said repeatedly such ordinances must
be "content -neutral".
Report Relating to Ui, come Advertising/Solicitations
. November 20, 1991
Page Three
The Municipal Code at present contains Section 9.16.050 which prohibits
door to door "peddling" or "solicitation" by salespeople for commercial
purposes where the resident has posted an appropriate sign. It may be
possible, if desired, to amend that statute to include non-commercial
handbill distribution, as long as it was done in a "content -neutral"
fashion.
Council direction is respectfully requested.
FUNDING: NIA
Peb
City Attorney
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