Jobe v. City of Catlettsburg

• Decision Date: 06 May 2005
• Docket Number: No. 04-5222.,04-5222.
• Citation: 409 F.3d 261
• Parties: Leonard F. JOBE, Plaintiff-Appellant, v. CITY OF CATLETTSBURG, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

409 F.3d 261

Leonard F. JOBE, Plaintiff-Appellant, v. CITY OF CATLETTSBURG, Defendant-Appellee.

No. 04-5222.

United States Court of Appeals, Sixth Circuit.

Argued: February 2, 2005.

Decided and Filed: May 6, 2005.

ARGUED: David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, Kentucky, for Appellant. Matthew J. Wixsom, Ashland, Kentucky, for Appellee. ON BRIEF: David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, Kentucky, Edward E. Dove, Dove Law Office, Lexington, Kentucky, for Appellant. Matthew J. Wixsom, Ashland, Kentucky, for Appellee.

Before: NELSON and SUTTON, Circuit Judges; WELLS, District Judge.^*

OPINION

SUTTON, Circuit Judge.

May a city, consistent with the First and Fourteenth Amendments, prohibit individuals from placing leaflets on car windshields and other parts of a vehicle without the consent of the owner? Because the law represents a content-neutral restriction on the time, place and manner of speech, because the law narrowly regulates the problems at hand (littering, visual blight and unauthorized use of private property), because the law leaves open ample alternative avenues for distributing leaflets in an inexpensive manner (face-to-face on a public street and door-to-door in a neighborhood) and because the law has much in common with a ban on placing signs on utility poles, see Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), we conclude that it may.

I.

The City of Catlettsburg lies in northeastern Kentucky at the confluence of the Ohio and Big Sandy rivers, where the borders of Kentucky, Ohio and West Virginia all converge. The city has a population of about 1,900.

In 1952, the city council of Catlettsburg enacted the following ordinance:

§ 113.05 Placing Posters on Vehicles

It shall be unlawful for any person to place or deposit or in any manner to affix or cause to be placed or deposited or affixed to any automobile or other vehicle or other automotive vehicle, any handbill, sign, poster, advertisement, or notice of any kind whatsoever, unless he be the owner thereof, or without first having secured in writing the consent of the owner thereof.

Penalty, see § 113.99

Catlettsburg, Ky., City Ordinances, § 113.05. The ordinance thus prohibits individuals from doing two different things — "plac[ing]" a handbill on a car (e.g., under the windshield wipers) or "affix[ing]" a poster or other advertisement to the car. Individuals who violate the section may be fined "not more than $500." See § 113.99.

The ordinance does not stand alone in the city's code. In a neighboring law, entitled "Scattering, Littering Prohibited," the city forbids throwing, scattering, or distributing any poster or pamphlet upon any public place (including sidewalks and streets), upon "any private lot or steps," or "into or upon ... any vehicle." See § 113.03. At the same time, the city expressly permits the distribution of written materials to private residences if the literature "is handed in at the door, or placed on a porch, or securely fastened to prevent it from being blown or scattered about," id., and the city does not prohibit individuals from handing out leaflets on streets, sidewalks or other public places.

The current mayor of Catlettsburg does not know why the city first promulgated the vehicle-handbill ordinance over a half-century ago. As for the present-day relevance of the ordinance, the mayor has explained that the municipality has a general littering problem that this ordinance (along with other ordinances) helps to address.

Leonard Jobe lives in Catlettsburg and is the head of the local American Legion post. In 2002, Jobe, with no apparent knowledge of the law, began distributing leaflets on behalf of the American Legion by placing them under the windshield wipers of cars parked on public property. In response, the city enforced the ordinance against him by fining Jobe $500. Jobe has paid the fine and does not challenge its imposition here. As far as the mayor can recall (based on his employment with the city since 1991), Jobe was the first person against whom the city has enforced the ordinance. To the mayor's knowledge, no one had complained about leafletters violating the ordinance before Jobe's violation and no one has complained about leafletting of this sort since then.

Invoking his First (and Fourteenth) Amendment right to freedom of speech, Jobe filed a three-page declaratory-judgment action against the city, seeking a declaration that the ordinance was unconstitutional, an injunction against the ordinance as applied to future leafletting by him and an award of costs and attorney's fees. On cross motions for summary judgment and after minimal discovery initiated by the parties, the district court upheld the ordinance as a valid content-neutral time, place and manner restriction that did not foreclose other means of effective communication. We review the district court's grant of summary judgment de novo. CSX Transp., Inc. v. United Transp. Union, 395 F.3d 365, 368 (6th Cir.2005).

II.

A.

In its traditional form, leafletting occurs when individuals offer handbills, pamphlets, tracts, advertisements, notices and other information to individuals on the street or sidewalk who remain free to accept or reject the document. Taxpayers for Vincent, 466 U.S. at 809-10, 104 S.Ct. 2118 ("The [leafletting] right recognized in Schneider [v. New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939),] is to tender the written material to the passerby who may reject it or accept it, and who thereafter may keep it, dispose of it properly, or incur the risk of punishment if he lets it fall to the ground."). It is a venerable and inexpensive method of communication that has permitted citizens to spread political, religious and commercial messages throughout American history, starting with the half a million copies of Thomas Paine's Common Sense that fomented the American Revolution. See Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949 (1938) (noting that "pamphlets and leaflets ... have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest"); Murdock v. Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 891, 87 L.Ed. 1292 (1943) ("The hand distribution of religious tracts is an age-old form of missionary evangelism—as old as the history of printing presses."). See also Watchtower Bible & Tract Soc'y of New York v. Vill. of Stratton, 536 U.S. 150, 153, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (religious speech); Hill v. Colorado, 530 U.S. 703, 716, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (political speech); Breard v. Alexandria, 341 U.S. 622, 624, 71 S.Ct. 920, 95 L.Ed. 1233 (1951) (commercial speech); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 424, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (commercial speech).

In each of these settings, the Supreme Court has made it clear that leafletting and related activities represent a method of speech protected by the First and Fourteenth Amendments. The Court has invalidated bans on leafletting on public streets. See, e.g., United States v. Grace, 461 U.S. 171, 183-84, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (striking statute forbidding leafletting on the sidewalks surrounding the Supreme Court); Jamison v. Texas, 318 U.S. 413, 414, 63 S.Ct. 669, 87 L.Ed. 869 (1943) (striking ordinance forbidding leafletting on public streets); Schneider, 308 U.S. at 162-63, 60 S.Ct. 146 (striking ordinances forbidding leafletting on public streets). It has invalidated bans on door-to-door leafletting, where individuals offer the homeowner informational tracts at the same time that they try to engage the homeowner about the religious, political or commercial message they wish to convey. See, e.g., Martin v. City of Struthers, 319 U.S. 141, 149, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) (striking ordinance that forbade ringing a doorbell or otherwise summoning a resident to the door to receive handbills); Schneider, 308 U.S. at 165, 60 S.Ct. 146 (striking ordinance that forbade door-to-door leafletting). And it has invalidated licensing requirements for door-to-door solicitors and leafletters. See Watchtower Bible & Tract Soc'y of New York, 536 U.S. at 168, 122 S.Ct. 2080 (striking ordinance prohibiting canvassers from going door-to-door among residences without a permit because it was "not tailored to the Village's stated interests"); Lovell, 303 U.S. at 451, 58 S.Ct. 666 (striking ordinance prohibiting "the distribution of literature of any kind at any time, at any place, and in any manner without a permit").

At the same time that the Court has invalidated bans on leafletting and unyielding licensing requirements for leafletting, it has indicated that the reserved police powers of the States (and cities) permit them to impose reasonable time, place and manner restrictions on leafletting. See Frisby v. Schultz, 487 U.S. 474, 488, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (upholding ban on leafletting in front of a targeted residence); Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 654-55, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (upholding regulation restricting leafletting at a state fair to assigned booths); Hill, 530 U.S. at 723, 120 S.Ct. 2480 (upholding regulation prohibiting leafletters within 100 feet of a health care facility from knowingly coming within eight feet of another person without first receiving that person's consent); cf. Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 380, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (upholding injunction creating fixed buffer zones that prevented leafletters and protestors from approaching within 15 feet of health clinic doorways).

The Court also has addressed similar free-speech issues in the context of government regulations of signs. In Metromedia, Inc. v. City of San Diego, 453...