First Amendment protects free distribution pubs too; new Horry litter ordinance could bring test

Published Oct. 2018

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

Editor’s note:  Horry County Council passed on Oct. 2 an ordinancelimiting 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 inreversing 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.
Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

Other recent columns