City of Fredonia v. Chanute Tribune, 52244

• Decision Date: 17 December 1981
• Docket Number: No. 52244,52244
• Citation: 638 P.2d 347,7 Kan.App.2d 65
• Parties: , 8 Media L. Rep. 1053 CITY OF FREDONIA, Kansas, Plaintiff-Appellee, v. CHANUTE TRIBUNE, Chanute, Kansas, Defendant-Appellant.
• Court: Kansas Court of Appeals

Page 347

638 P.2d 347

7 Kan.App.2d 65, 8 Media L. Rep. 1053

CITY OF FREDONIA, Kansas, Plaintiff-Appellee, v. CHANUTE TRIBUNE, Chanute, Kansas, Defendant-Appellant.

No. 52244.

Court of Appeals of Kansas.

Dec. 17, 1981.

Syllabus by the Court

1. The printing and distribution of a newspaper is a form of speech which is protected by the First Amendment to the United States Constitution.

2. The First Amendment protection guaranteed to a newspaper extends not only to political and religious expression but to commercial print as well.

3. A newspaper has no constitutionally guaranteed right to continue to throw a newspaper on the lawn of an unwilling recipient after being notified not to do so, absent any showing that such prohibition would effectively or unreasonably deny its First Amendment rights.

4. The anti-litter ordinance of the City of Fredonia which makes it unlawful to throw litter onto private property except with the consent of the owner or occupant, as applied by the court to prohibit the delivery of a newspaper only after notice not to do so, is not overbroad, nor unconstitutionally vague.

W. Y. Chalfant, of Branine, Chalfant & Hyter, Hutchinson, for defendant-appellant.

Steven W. Rogers, Fredonia, for plaintiff-appellee.

Before HOLMES, Justice Presiding, MEYER, J., and HARRY G. MILLER, District Judge Retired, Assigned.

MILLER, Justice:

The defendant appeals from a conviction of "littering" under a city ordinance after a shopper paper printed by defendant was thrown on the lawn of a resident who had notified defendant that he did not want to receive it.

Defendant publishes a newspaper in Chanute, Kansas. In addition, since 1969, it has published a weekly paper called the Southeast Kansas Weekly, commonly known as a "shopper." The shopper is created by dropping the front page, the editorial page, comic page, and the local page of the Chanute Tribune and replacing same with various kinds of paid advertising, and it is thrown free-of-charge on the lawns of several communities, including Fredonia, Kansas.

In time, a problem arose in the City of Fredonia, where a number of residents complained to the City. We have not been given any details of the events preceding the complaint involved herein, or the extent and duration of the particular problem, except as hereinafter set out. It was stipulated that in 1978, when the problem was called to the attention of defendant that some residents did not want to receive the shopper, a plan was devised whereby a resident could notify the defendant, either by telephone or by use of a printed insert in the paper, and request that the paper not be thrown to him any more.

The complaining witness in this case, Rodger Shinn, so notified defendant. Notwithstanding, the shopper was again thrown on his lawn. Mr. Shinn then filed a complaint against defendant in the municipal court of Fredonia, and defendant was summoned to appear before the court. After a trial, defendant was found guilty of violating a city ordinance and fined $50.00. Defendant promptly appealed to the district court. After a brief evidentiary hearing, which was apparently not reported, the matter was submitted to the court on an agreed statement of facts and briefs. This agreed statement of facts is not a part of the record before us; however, the parties have set forth in their respective briefs a statement of the facts each considers essential and we must conclude that these are the evidentiary facts presented to the trial court. The district court affirmed the judgment of the municipal court, hence this appeal.

The pertinent parts of the ordinance involved, insofar as this appeal is concerned, are as follows:

"LITTERING. It shall be unlawful for any person to dump, throw, place, deposit or leave, or cause to be dumped, thrown, placed, deposited or left in, on, or about ... any private property, any dirt, filth, sewage, sweepings, dump ashes, tin cans, bottles, glass, paper, rags, tree cuttings, garbage, or other refuse of any kind, except ... with the consent of the owner or occupant where private property is involved."

Plaintiff does not quarrel with defendant's claim that in printing and distributing its shopper it enjoys First Amendment protection. Undoubtedly, the shopper is a form of "speech" which enjoys the protection of the First Amendment to the United States Constitution. It is settled that such protection extends not only to political and religious expression but to commercial print as well. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).

It is also clear, however, that the constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. Metromedia, Inc. v. San Diego, --- U.S. ----, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981); Central Hudson Gas v. Public Service Comm'n, 447 U.S. 557, 562, 100 S.Ct. 2343, 2349, 65 L.Ed.2d 341 (1980).

The specific issue here is whether the delivery of a shopper paper to an unwilling recipient, after notice not to do so, converts the paper, otherwise protected by the First Amendment, into litter which may be proscribed by the city.

It is defendant's position that freedom of speech and of the press requires no less than an absolute right to address the public on any subject desired, either orally or in print, unless there is a compelling state interest in regulating that speech in a reasonable manner. Defendant contends that no such compelling state interest is shown here, and that permitting an unwilling recipient to invoke the power of the state to invoke sanctions against the speaker or publisher in such a case is not a reasonable regulation and is therefore in violation of defendant's First Amendment rights.

The issue here, however, involves more than a simple delivery of a publication without prior solicitation or consent. Involved here is a continued delivery by throwing a paper onto private property after notice not to do so.

Plaintiff's contentions are not new. In Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), a Jehovah's Witnesses case, the ordinance involved prohibited door-to-door distribution of handbills and other literature and the ringing of doorbells or otherwise summoning the occupant to receive written or oral speech on any matter. In holding the ordinance to be unconstitutional, Justice Black stated:

"The right of freedom of speech and press has broad scope. The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. This freedom embraces the right to distribute literature, Lovell v. Griffin, 303 U.S. 444, 452 (58 S.Ct. 666, 669, 82 L.Ed. 949), and necessarily protects the right to receive it. The privilege may not be withdrawn even if it creates the minor nuisance for a community of cleaning litter from its streets. Schneider v. State, 308 U.S. 147, 162 (60 S.Ct. 146, 151, 84 L.Ed. 155). Yet the peace, good order, and comfort of the community may imperatively require regulation of the time, place and manner of distribution. Cantwell v. Connecticut, 310 U.S. 296, 304 (60 S.Ct. 900, 903, 84 L.Ed. 1213).... (319 U.S. at 143, 63 S.Ct. at 863)

....

"Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.

"Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off.... A city can punish those who call at a home in defiance of the previously expressed will of the occupant.... In any case, the problem must be worked out by each community for itself with due respect for the constitutional rights of those desiring to distribute literature and those desiring to receive it, as well as those who choose to exclude such distributers from the home." (319 U.S. at 146-149, 63 S.Ct. at 865-866.)

The right of the government to punish those who enter private property to disseminate ideas "in defiance of the previously expressed will of the occupant" was reaffirmed in Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). That case involved the validity of a federal statute which established a procedure whereby a person may require a mailer to remove his name from its mailing lists and to stop delivery of advertisements for " 'matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.' " (397 U.S. at 730, 90 S.Ct. at 1487.) In upholding the statute, the court, in an opinion by Chief Justice Burger, stated:

"In Martin v. Struthers, 319 U.S. 141 (63 S.Ct. 862, 87 L.Ed. 1313) (1943), Mr. Justice Black, for the Court, while supporting the '(f)reedom to distribute information to every citizen,' id., at 146 (63 S.Ct. at 865), acknowledged a limitation in terms of leaving 'with the homeowner himself' the power to decide 'whether distributors of literature may lawfully call at a home.' Id., at 148 (63 S.Ct. at 866). Weighing the highly important right to communicate, but without trying to determine where it...