Ad World, Inc. v. Doylestown Tp.

• Decision Date: 05 February 1982
• Docket Number: No. 81-1497,81-1497
• Citation: 672 F.2d 1136
• Parties: 8 Media L. Rep. 1073 AD WORLD, INC., Appellant, v. TOWNSHIP OF DOYLESTOWN.
• Court: U.S. Court of Appeals — Third Circuit

Page 1136

672 F.2d 1136

8 Media L. Rep. 1073

AD WORLD, INC., Appellant, v. TOWNSHIP OF DOYLESTOWN.

No. 81-1497.

United States Court of Appeals, Third Circuit.

Argued Nov. 19, 1981.

Decided Feb. 5, 1982.

Paul Bender (argued), Philadelphia, Pa., for appellant; Nan S. Famular, Sherman, Silverstein & Kohl, Cherry Hill, N. J., of counsel.

Harris & Harris, Warrington, Pa., Sheldon L. Albert (argued), Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for appellee.

Norman R. Bradley, Philadelphia, Pa., on behalf of amici curiae, Brookshire Publications, Inc., et al.; Saul, Ewing, Remick & Saul, Philadelphia, Pa., John W. Boyd, Freedman, Boyd & Daniels, Albuquerque, N. M., of counsel.

Alice Neff Lucan, Rochester, N. Y., Samuel E. Klein, Katherine Hatton, Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., on behalf of amicus curiae, Equitable Pub. Co.

H. Robert Fiebach, Joseph S. Finkelstein, Lisa A. Heyman, Philadelphia, Pa., on behalf of amicus curiae, The American Civil Liberties Union, Greater Philadelphia Branch; Burton Caine, Philadelphia, Pa., of counsel.

Before GIBBONS and SLOVITAR, Circuit Judges, and MEANOR, District Judge ^*.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Ad World, Inc., a publisher, appeals from a judgment in favor of the defendant Doylestown Township in a suit for damages and declaratory and injunctive relief prohibiting enforcement of Doylestown Ordinance 117. ¹ We conclude that the ordinance violates Ad World's first and fourteenth amendment rights, and we reverse.

Ad World, Inc. publishes Piggy Back, a 16 page tabloid which includes extensive advertising and a few pages of consumer and community information. Included in such community information are notices of community events and announcements. 510 F.Supp. at 853. Piggy Back provides coverage of communities and neighborhoods such as Doylestown Township by a free weekly distribution to every home in the area. Delivery is through local route carriers who attach the paper in a plastic bag to a mailbox hook or to a door knob or leave it on the premises. Ad World's policy is to stop delivery when a resident so requests, but it does not initially seek the householder's affirmative consent for delivery.

Piggy Back is a vehicle for advertisement by local merchants for the local market as well as a vehicle for news and announcements of local origin and interest. Publications such as Piggy Back are able, through an almost universal distribution to communities in suburban and rural areas, to make rates per household reached so attractive that local businesses can afford to advertise. Although the bulk of Piggy Back's content is advertising, appellant claims that the ratio of editorial and news contents to advertising is not significantly different from that of some metropolitan newspapers. The revenue from ads in Piggy Back allows Ad World to deliver its publication free of charge.

In October, 1980, plaintiff began distributing Piggy Back to homes in Doylestown Township, Bucks County, in Pennsylvania. On February 3, 1981, the Township enacted Ordinance 117:

AN ORDINANCE OF THE TOWNSHIP OF DOYLESTOWN, BUCKS COUNTY, PENNSYLVANIA, REGULATING THE DISTRIBUTION OF ADVERTISING MATERIALS AT RESIDENCES WITHIN THE TOWNSHIP.

WHEREAS, certain persons, firms or corporations have recently begun the distribution of advertising materials to Doylestown Township residents by placing or hanging the advertising material on mail boxes or posts or by depositing the said material upon other portions of private property without the request or consent of the owners or occupiers of the property, and

WHEREAS, in the judgment of the Board of Supervisors this manner of distribution of advertising materials is unsightly, constitutes an invasion of privacy, and unless picked up by the property owner within a reasonable time, the presence of such advertising material would be a clear indication that the residence was unoccupied and thus increase the possibility of vandalism and/or burglary.

BE IT ORDAINED, by the Board of Supervisors of the Township of Doylestown, Bucks County, Pennsylvania and it is hereby Ordained and Enacted by authority of same:

1. That it shall be unlawful for any person, firm or corporation to distribute advertising material at a residence within Doylestown Township (other than at the home of the person, firm or corporation distributing the same) by placing such material at the residence, on the property or on the residential mail box of the person owning or occupying the residence, unless the person, firm or corporation distributing such advertising material does so based upon the affirmative request or consent of the person occupying the residence. The foregoing provision shall not apply to the distribution of advertising material through the United States mail service.

2. That any violation of this Ordinance shall be considered a summary offense and upon conviction before a district justice, the violator shall be subject to a fine not exceeding $300.00. Each unlawful distribution to a residence shall be considered as a separate offense.

3. That this ordinance shall be added to the Code of Ordinances of the Township of Doylestown, Bucks County, Pennsylvania, and shall be effective five (5) days after its legal enactment.

Faced with an ordinance making its method of distribution illegal, Ad World on February 10, 1981 filed a complaint for an injunction preventing the Township from enforcing the Ordinance and for a declaration that it unconstitutionally infringed the right to free speech and press guaranteed by the first and fourteenth amendments. The complaint also seeks damages.

The District Court held Ordinance 117 to be a restriction on commercial speech and Piggy Back to be commercial speech. The court then considered whether the ordinance, as applied to plaintiff's publication would pass the constitutional test for restrictions on commercial speech announced in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). ² First the court examined the Township's interest, which was posited to be the protection of the public from burglary. ³ It concluded that the accumulation of advertising materials at residences provided a significant risk to the public, in the form of a signal to burglars that the premises were unoccupied. The regulation was thus directly related to the Township's public safety interest. Lastly, the court determined that Ordinance 117 was no more extensive than necessary to reach the desired result. It therefore upheld Ordinance 117, refused to issue an injunction, and dismissed the complaint. ⁴

Ad World contends that Piggy Back is noncommercial speech, and that, even if it were commercial speech, the distribution is protected by the first and fourteenth amendments which Ordinance 117 contravenes. ⁵ Since the first contention is well taken, we need not reach the second. ⁶

The district court based its conclusion that Piggy Back must be treated as commercial speech on its finding that only a few pages out of 16 in Piggy Back were nonadvertising. 510 F.Supp. at 853. We conclude, however, that Piggy Back must be considered noncommercial speech. Piggy Back performs locally functions that larger metropolitan or regional newspapers undertake: spreading information generally, and providing a medium for advertising. Like such newspapers, it carries news and editorials as well as advertising, in a ratio which appears to be not significantly different from some established metropolitan newspapers. Piggy Back appears to be accepted as a newspaper in the Doylestown community, since only 50 out of 3000 households have requested that it not be delivered.

The fact that a publication carries advertisements or that it is for profit does not render its speech commercial for first amendment purposes. N.Y. Times v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964). There is no evidence that the editorial content is added as a mere sham to convert a pure advertising leaflet into noncommercial speech. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). The line between commercial and noncommercial speech for first amendment purposes cannot be drawn by some magic ratio of editorial to advertising content. The important question is whether the publication as a whole relates solely to the economic interest of the speaker and its audience. Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557, 561, 100 S.Ct. at 2349 (1980). Even if a publication such as Piggy Back had contained only advertisements, it might be possible to view the publication as qualitatively different from an advertising leaflet put forth by an individual merchant to tout only its own products, because the publication would create a forum in which advertisers compete for the consumers' attention. In view, however, of the conceded fact that each issue of Piggy Back contains noncommercial material deserving of full first amendment protection, we need not reach the extent of protection to which it would be entitled in the absence of such material. The Supreme Court has confined the category of "commercial speech" to cases involving "purely commercial advertising." Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973), see Central Hudson, 447 U.S. at 561, 100 S.Ct. at 2349.

Piggy Back is thus entitled to the full protection of the first and fourteenth amendments. That being so, Ad World has the right to distribute its publication. Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943); Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949; Ex parte Jackson, 96 U.S. 723, 727, 24 L.Ed. 877 (1877). The first amendment is not absolute; some regulation by the state is permissible. Cantwell v....