Ad World, Inc. v. Township of Doylestown
| Citation | 510 F. Supp. 851 |
| Decision Date | 25 March 1981 |
| Docket Number | Civ. A. No. 81-0518. |
| Parties | AD WORLD, INC. v. TOWNSHIP OF DOYLESTOWN. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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Sherman, Silverstein & Kohl, Cherry Hill, N. J., by Nan S. Famular, Cherry Hill, N. J., for plaintiff.
Harris & Harris, Warrington, Pa., for defendant; Blank, Rome, Comisky & McCauley, by Sheldon L. Albert, Philadelphia, Pa., of counsel.
This is an action challenging the constitutionality of an ordinance which makes it unlawful to distribute advertising material by certain means to residences without the consent of their owners or occupiers. At issue are the competing values behind the right of the people to freedom of speech, as guaranteed by the First Amendment to the United States Constitution, and the obligation of the state to protect the public's health, safety, and welfare through use of the police power. For the reasons to follow, we conclude that the challenged ordinance is constitutionally valid. The plaintiff's claims for damages and injunctive relief are therefore denied, and judgment is entered in favor of the defendant and against the plaintiff.
Ad World, Inc. (Ad World) is the publisher of the "Piggy-Back", a sixteen page advertising bulletin which includes a few pages of consumer and community information. This publication is distributed weekly to 129,001 residences in central and lower Bucks County, Pennsylvania, including 3,000 in the Township of Doylestown. Ad World distributes each bulletin in a plastic bag, which is placed at the residence by a carrier who attaches it to a mail box hook or leaves it on a porch, sidewalk, lawn or some other location on the premises. All costs are paid by the bulletin's advertisers, and there is no charge to its recipients.
The Board of Supervisors of the Township of Doylestown (Doylestown) has enacted Ordinance No. 117, which provides as follows:
Plaintiff asserts that as a result of the enactment of the ordinance, it is prohibited from distributing its publication, and that if it continues to distribute its publication, it will be cited for violation of the ordinance, thereby creating a financial burden which it is unable to bear.
Ad World thus contends that the ordinance prescribes the distribution of a type of communication and as such violates its constitutional right to freely speak, print and disseminate its publication. Damages and injunctive relief are sought.
Defendant argues that the ordinance is necessary to protect residents from potential burglars and vandals, who would otherwise be alerted by the accumulation of advertising materials, such as plaintiff's publication, that a residence was apparently unoccupied. Defendant denies that the ordinance is unconstitutional as it does not proscribe speech, printing or dissemination, or the distribution of a type of communication, but rather merely regulates a method of delivery.1
The First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech, or of the press...," and is made applicable to the states via the Fourteenth Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500, n.8, 72 S.Ct. 777, 780 n.8, 96 L.Ed. 1098 (1952). The First Amendment's protection encompasses commercial speech, that is, expression related solely to the economic interests of the speaker and its audience, but to a lesser degree than other constitutionally guaranteed expression. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Since the Doylestown ordinance specifically applies only to advertising materials, it is a restriction upon commercial speech.2 Since plaintiff's publication is an advertising bulletin, it is a fortiori expression related solely to the economic interests of the speaker and its audience. We must therefore engage in the four-step analysis for commercial speech cases developed by the United States Supreme Court:
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
There is no question but that the plaintiff's advertising publication is protected by the First Amendment. Commercial speech is entitled to such protection, and there is absolutely no indication nor even any allegation that the publication does not concern lawful activity or that it is misleading. See Id.
As justification for the ordinance, defendant asserts that it is necessary in order to prevent crime on residential property. According to defendant the presence of advertising material, which has been left on, but not removed from a mailbox, step, porch, sidewalk or lawn, is a signal to would-be criminals that a residence is apparently unoccupied at the moment. This governmental interest in protecting the public from crime is of course substantial. See, Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 616-19, 96 S.Ct. 1755, 1758-60, 48 L.Ed.2d 243 (1976); Martin v. City of Struthers, 319 U.S. 141, 144, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943).
We consider next the relationship between the ordinance and the state's interests. We conclude that the accumulation of advertising materials at a residence poses significant risks to the public, as it is a clear invitation to burglars and vandals to enter apparently unoccupied premises. See, Commonwealth v. Sterlace, 481 Pa. 6, 12, 391 A.2d 1066, 1069 (1978).
We reject the plaintiff's argument that this link between the regulation and the state's interest is forged...
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Ad World, Inc. v. Doylestown Tp.
...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......
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Ad World, Inc. v. Township of Doylestown
...means to residences without the owner's or occupier's consent. We denied the plaintiff's claim for injunctive relief and damages. 510 F.Supp. 851 (E.D.Pa.1981). On appeal, the Court of Appeals for the Third Circuit held that the ordinance was unconstitutional, and remanded the case to us fo......
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