Association of Community Organizations for Reform Now v. City of Frontenac

• Decision Date: 16 August 1983
• Docket Number: No. 82-1857,82-1857
• Parties: ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, a/k/a ACORN, and Vivian Allison, Appellants, v. CITY OF FRONTENAC; David M. Blazer, Chief of Police, City of Frontenac; Morgan B. Lawton, Mayor, City of Frontenac; Francis Phelan, Alderman, City of Frontenac; Harry Greditzer, Alderman, City of Frontenac; Marjorie R. Harwood, Alderman, City of Frontenac; John H. Klamer, Alderman, City of Frontenac; F. Ryan Preston, Alderman, City of Frontenac; and A. J. Spanogle, Alderman, City of Frontenac, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 813

714 F.2d 813

ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, a/k/a ACORN, and Vivian Allison, Appellants, v. CITY OF FRONTENAC; David M. Blazer, Chief of Police, City of Frontenac; Morgan B. Lawton, Mayor, City of Frontenac Francis Phelan, Alderman, City of Frontenac; Harry Greditzer, Alderman, City of Frontenac; Marjorie R Harwood, Alderman, City of Frontenac; John H. Klamer Alderman, City of Frontenac; F. Ryan Preston, Alderman City of Frontenac; and A. J. Spanogle, Alderman, City of Frontenac, Appellees.

No. 82-1857.

United States Court of Appeals, Eighth Circuit.

Submitted April 14, 1983.

Decided Aug. 16, 1983.

John D. Lynn, Chackes, Hoare & Sedey, St. Louis, Mo., for appellants.

George E. Helfers, Clayton, Mo., David D. Crane, St. Louis, Mo., for appellees.

Before LAY, Chief Judge, McMILLIAN and JOHN R. GIBSON, Circuit Judges.

LAY, Chief Judge.

The plaintiffs, the Association of Community Organizations for Reform Now (ACORN), et al., appeal from an adverse judgment rendered by the United States District Court for the Eastern District of Missouri. The plaintiffs sued to enjoin the enforcement of a Frontenac city ordinance which prohibits ACORN workers from engaging in residential door-to-door canvassing in Frontenac after 6:00 p.m. The district court, sitting without a jury, upheld the ordinance as a reasonable time, place, and manner regulation. Association of Community Organizations for Reform Now v. City of Frontenac, 541 F.Supp. 765, 770 (E.D.Mo.1982). Because we find the ordinance is not narrowly tailored to advance Frontenac's legitimate objectives, we hold that its application to ACORN would violate the plaintiffs' first amendment rights. Accordingly, we reverse the judgment of the district court and direct entry of judgment in favor of the plaintiffs.

ACORN is a nonprofit organization operating in Missouri, among other states. ACORN's purpose, as stated in its charter, is "to advance the interests of low and moderate income people as citizens of the United States and of their respective communities and states, in every area of their interest and concern." According to its brief, "ACORN seeks to mobilize significant numbers of people to influence private and public decision-makers with respect to issues of common concern to its members." In order to organize citizens into neighborhood groups, ACORN employees engage in residential door-to-door canvassing, normally on weekdays from 4:00 p.m. to 9:00 p.m. Residents are asked to support ACORN by signing a petition, providing financial or personal volunteer support, or subscribing to ACORN's newsletters.

In March 1981, the City of Frontenac enacted Ordinance No. 638, which provides in part:

Section 2. The following practices very often become nuisances and therefore are of such public concern that they must be regulated:

a) That of going in and upon private residences by peddlers, canvassers, solicitors and transient vendors of merchandise, not having been requested or invited so to do by the owner or occupant, for the purpose of soliciting orders for the sale of goods, wares and merchandise, or for the purpose of disposing of same.

b) That of peddling, selling of goods, wares or merchandise upon public or private streets or sidewalks.

c) That of soliciting money, services or orders for the sale of goods, wares or merchandise upon public or private streets or sidewalks.

d) That of soliciting money by a bona fide nonprofit charitable organization either (1) by going in or upon private residences, not having been requested or invited so to do by the owner or occupant, or (2) upon public streets or sidewalks.

....

Section 6. Hours of Solicitation: No person shall solicit except between the hours of 9:00 a.m. and 6:00 p.m. on each day, and no solicitation shall be done on Sundays, or legal holidays.

Frontenac, Mo., Code Ordinance No. 638, §§ 2, 6. ¹ The parties have stipulated that Frontenac will enforce section 6 of the ordinance against ACORN workers who canvass during prohibited hours. As a result of the ordinance and its threatened enforcement, ACORN has suspended canvassing activities in Frontenac.

ACORN brought suit under 42 U.S.C. § 1983 (1976), claiming that Frontenac's enforcement of the ordinance deprived ACORN of its rights under the first and fourteenth amendments to the Constitution. ² The defendants responded at trial that the ordinance was necessary to protect the security and privacy of Frontenac residents, and to lessen the possibility of burglary and other crimes.

After a trial, the district court entered judgment for the defendants and held:

The Frontenac ordinance enacted by the defendants in this cause of action appears to be a permissible accommodation of the plaintiffs' rights to solicit and the municipality's interests in protecting its citizens and preserving the peaceful enjoyment of the homes for its citizens. Westfall v. Clayton County, 477 F.Supp. 862, 865 (N.D.Ga.1979).

ACORN v. Frontenac, 541 F.Supp. at 770.

The district court reasoned that since the regulation was content neutral, that since Frontenac had a legitimate interest in protecting its citizens' privacy and safety, and that since ACORN had ample alternative opportunities to contact the public, the ordinance was a permissible time, place, and manner regulation of ACORN's exercise of its first amendment rights. Id. The plaintiffs appeal. ³

Discussion.

ACORN's canvassing and soliciting activities clearly are protected by the first amendment, and the district court so held. ACORN v. Frontenac, 541 F.Supp. at 769. See Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 629, 632-33, 100 S.Ct. 826, 832, 833-34, 63 L.Ed.2d 73 (1980). In addition, it is plain the ordinance in question directly and substantially affects ACORN's first amendment rights, since ACORN employees normally canvass from 4:00 p.m. to 9:00 p.m. on weekdays and desire to do so in Frontenac, but the ordinance prohibits canvassing after 6:00 p.m.

It is also unquestioned that Frontenac has the power to regulate the activities of canvassers and solicitors if the regulation is in furtherance of a legitimate governmental objective. E.g., Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17, 96 S.Ct. 1755, 1758-59, 48 L.Ed.2d 243 (1976). However, such regulation must be undertaken

[W]ith due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease. Canvassers in such contexts are necessarily more than solicitors for money.

Village of Schaumberg, 444 U.S. at 632, 100 S.Ct. at 833.

Although the initial structuring of such a regulation is within the legislature's domain, it is the duty of the courts to determine the regulation's constitutional validity. Thomas v. Collins, 323 U.S. 516, 531-32, 65 S.Ct. 315, 323, 89 L.Ed. 430 (1945); Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939). In addition, although a duly enacted statute normally carries with it a presumption of constitutionality, when a regulation allegedly infringes on the exercise of first amendment rights, the statute's proponent bears the burden of establishing the statute's constitutionality. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); Citizens for a Better Environment v. Village of Schaumberg, 590 F.2d 220, 224 (7th Cir.1978), aff'd, 444 U.S. 620, 100 S.Ct. 826 (1980); Citizens for a Better Environment v. Village of Olympia Fields, 511 F.Supp. 104, 106 (N.D.Ill.1980). ⁴

The validity of a regulation that infringes upon the exercise of first amendment freedoms will be sustained only if the regulation is narrowly drawn to further a legitimate governmental objective unrelated to the restriction of communication, and if it does not unduly intrude upon the exercise of first amendment rights. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 658, 101 S.Ct. 2559, 2569, 69 L.Ed.2d 298 (1981) (Brennan, J., concurring and dissenting); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981); Village of Schaumberg, 444 U.S. at 637, 100 S.Ct. at 836; Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940); L. Tribe, American Constitutional Law § 12-2, at 581-82 (1978). ⁵

In applying the test to this case, we recognize that the preservation of the privacy and safety of its citizens is a legitimate governmental objective for Frontenac to pursue. A municipality certainly has the power, even the duty, to regulate activities within its borders to lessen the opportunities for crime against its residents and their property. Similarly, a municipality may regulate activities in the interest of preventing undue annoyance of its residents. Hynes v. Mayor of Oradell, 425 U.S. at 616-17, 619, 96 S.Ct. at 1758-59, 1760; Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949); Citizens for a Better Environment v. Village of Olympia Fields, 511 F.Supp. at 106; Connecticut Citizens Action Group v. Town of Southington, 508 F.Supp. 43, 47 (D.Conn.1980).

Although we find that Frontenac's asserted objectives are legitimate, we hold that the regulation in issue here is not sufficiently tailored so as to avoid conflict with the plaintiffs' first amendment freedoms. Since constitutional principles require that the regulation be narrowly drawn to further the legitimate governmental objective, the proponent of the regulation must demonstrate ⁶ that the government's objectives will not be served sufficiently by means less restrictive of first amendment freedoms. E.g., Schad v. Borough of Mount Ephraim, 452 U.S. at 70-72, 101 S.Ct. at 2183-84; ...