Com. v. Sterlace
| Decision Date | 06 October 1978 |
| Citation | 481 Pa. 6,391 A.2d 1066 |
| Parties | , 4 Media L. Rep. 2014 COMMONWEALTH of Pennsylvania and Lt. M. Van Leer, Appellants, v. Richard S. STERLACE. |
| Court | Pennsylvania Supreme Court |
Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
McCandless Township's Board of Commissioners enacted Ordinance No. 662 to regulate the distribution of advertising materials. Ordinance No. 662 provides, in pertinent part:
Appellee Richard Sterlace, engaged in the business of distributing advertising materials to McCandless Township residences, filed a complaint in the Court of Common Pleas to enjoin enforcement of the Ordinance pending a determination of its constitutionality. The Ordinance was held constitutional and injunctive relief was denied by the court (Silvestri, J., sitting in Equity). Appellee was then charged with violations of Ordinance No. 662, found guilty in magistrate's court, and fined $30. After a trial de novo in the Court of Common Pleas, his conviction was affirmed.
The Commonwealth Court held Ordinance No. 662 unconstitutional under the first and fourteenth amendments to the Constitution of the United States. We granted allowance of appeal and now reverse. 1
The United States Supreme Court has long recognized that all "time, place and manner" regulations that is, regulations addressed not to the content of speech, but to some condition of its occurrence burden the flow of speech. But it has always been necessary to show more than the existence of such an increased burden. To strike a time, place or manner regulation as violative of the first and fourteenth amendments to the Constitution, it is necessary to establish that, given the nature of the governmental interests, the regulation unduly burdens protected speech. Mr. Justice Marshall, speaking for the Court, has recently reaffirmed this view:
Grayned v. City of Rockford, 408 U.S. 104, 116-17, 92 S.Ct. 2294, 2303-04, 33 L.Ed.2d 222 (1972) ().
More recently, Chief Justice Burger, for the Court, reiterated:
"(a) narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear may serve these important (municipal) interests without running afoul of the First Amendment."
Thus, to pass constitutional muster as a regulation of "time, place and manner", Ordinance No. 662 must be narrowly drawn, " leav(ing) open ample alternative channels for communications," Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) citing Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976), and protecting a significant government or public interest. L. Tribe. American Constitutional Law, 581-582 (1978). It need not be shown that the chosen means is the "least restrictive alternative." 2
The Commonwealth Court correctly concluded that this ordinance "applies to all advertising, both commercial and non-commercial." 3 The preamble, too, clearly demonstrates that the township's concerns were not with the expressive content of any speech, but were entirely focused on the place and manner in which material was to be distributed. 4 Finally, nothing in the record indicates that McCandless Township was regulating distribution in order to prevent information conveyed in appellant's advertising materials from injuring the community. Compare Linmark, supra note 1. Thus, this regulation may be tested as a regulation of the time, place and manner speech.
The ordinance's preamble clearly establishes the substantial township interests in preventing crime on residential property. There can be no question but that an accumulation of advertising materials at the entry of a residence, whether at a door or mailbox, poses significant risks in a residential area. Such an accumulation would be a clear invitation to burglars and vandals to enter apparently unoccupied premises.
Where, however, the homeowner has expressed a desire to receive materials distributed in the manner and place regulated by Ordinance No. 662, it is clear that this risk is materially reduced. When it is known that these materials are desired, there is ample reason to believe that homeowners in the area will both collect these materials before they can become either litter or eyesores and assume the responsibility, as they do with newspapers and other home doorstep deliveries, to suspend delivery or to arrange for these materials to be picked up in their absence.
Appellee's argument that interests cannot be substantial where homeowner consent constitutes a defense is, as Judge Silvestri concluded, without merit. The consent clause reaffirms the nature of the interests at stake by permitting a risk-creating form of distribution only where there is reason to believe that the homeowner will be an active participant in providing protection from the risks.
This ordinance is clearly distinguishable from one which might bar All home distribution of materials merely to ensure clean streets, cf. Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939) (), or one where compliance with the ordinance would eliminate use of a traditional forum of speech and leave limited alternatives of increased expense reaching a significantly decreased audience. Linmark, supra. Moreover, this regulation does not affect the use of any public facility. Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
Thus, on a time, place and manner analysis, the only remaining question is whether this ordinance impermissibly burdens the possibility of exercising one's first amendment rights by limiting one means of expression in the absence of satisfactory alternatives for such expression. The scope of this ordinance is so limited that it does not attempt to proscribe any of the "classic" or traditional means of exercising first amendment rights. The township continues to permit door-to-door, face-to-face solicitation and distribution, mail distribution, leafletting in public places and even doorstep distribution. Ordinance No. 662 serves only to condition this last form of first amendment exercise on the consent of the resident in advance of distribution. Thus, it cannot be concluded that inadequate numbers of alternatives are available.
Costs, of course, must be considered in determining the reasonableness of remaining alternatives. Linmark, supra, 431 U.S. at 91, 97 S.Ct. at 1618. Their effect must be weighed in the balancing process which follows the determination that an ordinance is a time, place or manner regulation. But McCandless Township is under no duty to ensure advertisers the cheapest method of distribution and here a plethora of alternatives remain open. We hold this Ordinance to be a constitutional regulation of the time, place and manner of speech.
It is error to apply a least restrictive alternative analysis to determine the constitutionality of the ordinance even if it were to be read as a regulation of commercial speech. Commercial speech has only recently been accorded constitutional protection, Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 846 (1976), and therefore the parameters of testing the constitutionality of its regulation are not yet fully established. In no event, however, has the Supreme Court suggested that regulations of commercial speech are constitutional only if they are the least restrictive means to achieve some legitimate state end. On the contrary, the use of such a standard would be inimical to the determination that while commercial speech is protected by the first and fourteenth amendments to the Constitution, the protection afforded is "a limited measure of protection, commensurate with (commercial speech's) position in the scale of First Amendment values, (allowing) modes of regulation that might be impermissible in the realm of non-commercial expression." Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, ...
To continue reading
Request your trial