CITY OFFICIALS USING SUPREME COURT’S DECISIONS INVALIDLY

The following is an excerpt from a report by Brent Horner, AAPS Legal Counsel. The entire report contains several case precedents that defend our First Amendment right to deliver and was sent to you in the October 2011 Monthly Delivery e-Newsletter. What follow is a Q&A with Mr. Horner conducted by John White which attempts to determine our association’s situation and possible course of action.

Texas, and to a lesser degree other, municipalities appear to have collaboratively created similar statutes whereby they require permits (and identification) for handbill distribution. They often also use the terms “Peddler”, Solicitor”, or “Canvasser” as a synonym for “Leafleter” or “Pamphleteer” in order to invoke the perception of actual contact with residents and thereby more heavily regulate distributions of handbills.

Direct to Door delivery of leaflets and door hangers do not meet the definition of a “Peddler” or “Solicitor” or “Canvasser” in any sense, and certainly direct deliverers do not peddle, sell, solicit, canvass, or take orders and do not meet the definition of the Ordinances, which would otherwise then possibly require a permit for commercial “Peddler”, Solicitor”, or “Canvasser”. This improper confusion of terminology serves the purpose of the municipalities well since the inference of the terms “Peddler”, Solicitor”, or “Canvasser” is that there is a direct contact made by the resident of the municipality, and given the risk of fraud or other crime related to direct contact, permits or restrictions for commercial speech transactions are, they argue, “appropriate.”

They base this reasoning, in part on statements made by the Supreme Court in Watchtower Bible and Tract Society of New York, Inc., et al., v. Village of Stratton 536 U.S. 150, 166-167 (2002).

Thus, the Supreme Court seems to draw the distinction- although not clearly -between “in- person contacts” of Solicitors, Canvassers and Peddlers of commercial transaction (less First Amendment protection), from distributions of handbills of any type or variety (greater First Amendment protection. As the Supreme Court further noted in Village of Stratton 536 U.S. 150, at 168 -169.

What we are left with in this confusing welter of issues, upon which the Supreme Court is both inconsistent and in disagreement, is that on the one hand the Court seems to say that any regulations must be “content neutral”- meaning that the manner of the delivery of the speech should not depend on the content of that speech, but rather treated equally – while on the on the hand, expressing concern that commercial face –to- face “soliciting” may be, to some degree, regulated because of the concerns of fraud, invasion of privacy and the like. Upon this fine distinction, Texas (and other states) municipalities have been passing license/permit and restrictions-on-delivery regulations which do not withstand careful scrutiny.

In sum, what we are left with is keeping the primary focus the manner of delivery of the speech, rather than its contents. If no contact is made with the resident, then no prohibitive regulation should be required or deemed acceptable. The expense of fighting the municipalities for First Amendment rights and the extreme time constraints on most deliveries insure to a large degree that the cities’ get away with these overbroad and vague ordinances.