H & L Messengers, Inc. v. City of Brentwood

• Decision Date: 12 February 1979
• Parties: , 4 Media L. Rep. 2471 H & L MESSENGERS, INC., Appellant, v. CITY OF BRENTWOOD et al., Appellees.
• Court: Tennessee Supreme Court

Page 444

577 S.W.2d 444

12 A.L.R.4th 835, 4 Media L. Rep. 2471

H & L MESSENGERS, INC., Appellant, v. CITY OF BRENTWOOD et al., Appellees.

Supreme Court of Tennessee.

Feb. 12, 1979.

Daniel R. Loftus, Watkins, McGugin, McNeilly & Rowan, Nashville, for appellant.

Robert H. Jennings, Jr., West, Jennings & Allen, Nashville, for appellees.

James R. Kniffen, Barrett, Lenahan, Kniffen & Ray, Nashville, Peter J. Carre, Washington, D. C., for appellee-intervenor, Branch 4, Nat. Ass'n of Letter Carriers, AFL-CIO.

OPINION

HENRY, Chief Justice.

This declaratory judgment action, filed pursuant to § 23-1101, T.C.A. and Rule 65, Tenn.R.Civ.P., attacks the constitutionality of an ordinance of the City of Brentwood, on the single basis that it contravenes the First Amendment to the Constitution of the United States.

The Chancellor, whose action is more fully set out hereinafter, declared the ordinance valid, after eliding certain portions he considered unconstitutional.

I. Background

The City of Brentwood, located in the extreme northern portion of Williamson County, has a population of approximately 8,000 persons, and is overwhelmingly residential in character. According to the testimony of one of its elected officials, a constant effort has been made "to maintain a community that is peaceful, dignified, and a comfortable place for people who live there to call home."

Homes are located on lots containing a minimum of one (1) acre. Apartment complexes are not permitted. The overall density factor is on the maximum basis of one family per acre. At least 95% Of the residents are employed outside the city. It maintains a small police department and the city's greatest law enforcement problem is housebreaking or burglary.

It would be fair to state that the residents of Brentwood have attempted to establish a city of "quiet seclusion" and a "sanctuary for people." Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974).

To further this goal, the governing body of the city adopted the ordinance in question. Its purposes were to prevent litter in yards and streets, to maintain the privacy of residents, and to combat burglary by guarding against accumulations of handbills and other advertising material during extended absences of residents from their homes, thus eliminating indications that the premises were temporarily vacant.

H & L Messengers is engaged in the business of delivering handbills or circulars, and occasionally samples, in Brentwood and surrounding areas. Its Modus operandi is to place the advertising matter in plastic bags which, in turn, are hung on door knobs or attached to mailboxes by means of rubber bands.

In the year preceding this suit some 30,000 deliveries were made in Brentwood and a substantial number of these involved uninvited entry upon the property owned by citizens of Brentwood.

The proof indicates that it is difficult, if not impossible, for a citizen to have these deliveries discontinued. This delivery method has resulted in advertising handbills and other matter being blown into residents' yards and those of neighbors and upon the streets.

The proof shows, and the Chancellor found, that other advertising methods are available, but the service provided by H & L is substantially cheaper and more efficient. It should be emphasized, however, that H & L does not obtain prior approval or consent to enter upon private property and does not cease deliveries when requested to do so.

Branch 4, National Association of Letter Carriers, AFL-CIO was permitted to intervene in the trial court. The stated interests of this group are job protection and the protection of the good name of carriers who sometimes are charged with complaints based upon H & L's delivery methods.

II.

The Ordinance

Sequentially, the ordinance ¹ prohibits:

a. Throwing or depositing commercial or non-commercial handbills on any sidewalk, street, or other public place. (Sec. 2)

b. Handing out, distributing, or selling commercial handbills in any public place. (Sec. 2)

c. Throwing or depositing commercial or non-commercial handbills in or on any "temporarily or continuously uninhabited or vacant" private premises. (Sec. 3)

d. Throwing, depositing, or distributing any commercial or non-commercial handbill in or on any private premises, unless delivered to an owner, occupant, or other person on the premises. (Sec. 4)

It permits:

a. The distribution, without charge, of any non-commercial handbill, on any street, sidewalk, or other public place, to any willing recipient. (Sec. 2)

It exempts:

a. Mail, newspapers, religious, and political material from the prohibitions against delivery to vacant or unoccupied premises, but requires that such material be placed on private property "in such a manner as to prevent their being carried or deposited by the elements upon any street, sidewalk or other public place or upon private property." (Sec. 3)

b. Mail, newspapers, religious, and political material are wholly exempt from Section 4, with the result that such items may be thrown, deposited, or distributed on private premises without permission.

In summary:

a. Commercial or non-commercial handbills may not be deposited or thrown upon any street, sidewalk, or other public place, or upon any vacant or unoccupied premises, or distributed to any private premises unless delivered to the owner, occupant, or some other person b. Commercial handbills may not be distributed in any public place.

c. Mail, newspapers, and political or religious material may be delivered to any private premises, subject to the qualification that if the property is vacant or unoccupied, the material must be placed in such a manner as to prevent litter.

The evident confusion of this incongruous scheme is compounded by the definitions of the terms "commercial handbill" and "non-commercial handbill." We set these out verbatim:

(1) Commercial handbill is any imprinted or written matter, any sample or device, dodger, circular, leaflet, pamphlet, paper, booklet, or any other printed or otherwise reproduced original or copies of any matter of literature.

(a) Which advertises for sale any merchandise, product, commodity, or thing; or

(b) Which directs attention to any business or mercantile or commercial establishment, or other activity, for the purpose of either directly or indirectly promoting the interest thereof by sales; or

(c) Which directs attention to or advertises any meeting, theatrical performance, exhibition, or event of any kind, for which an admission fee is charged for the purpose of private gain or profit; or

(d) Which, while containing reading matter other than advertising matter, is predominantly and essentially an advertisement, and is distributed or circulated for advertising purposes, or for the private benefit and gain of any person so engaged as advertiser or distributor.

(3) Non-commercial handbill is any printed or written matter, any sample, or device, dodger, circular, leaflet, pamphlet, newspaper, magazine, paper, booklet, or any other printed or otherwise reproduced original or copies of any matter of literature not included in the aforesaid definitions of a commercial handbill or newspaper, but Excluding religious or political printed material. (Emphasis supplied)

Although the structure of the ordinance indicates an apparent intention to create three categories, viz., commercial, non-commercial, and ideological, the definition of commercial handbills is so broad that it includes virtually every communication that is not purely ideological. Applying technical rules of grammar, the effect of "excluding religious or political printed material" from the definition of non-commercial handbills is to convert such material into commercial handbills, the only other category defined by the ordinance. When read in a more liberal light, the totality of its provisions indicates an intent to divide materials into two categories, i. e., commercial and ideological. Within the context of these definitions, a prospective advertiser or distributor of handbills would be hard put to determine the proper classification of any matter intended for delivery. We are plagued by the same problem.

III.

The Chancellor's Findings

The Chancellor held that:

. . . the ordinance in question was enacted for the purpose of (1) preventing littering on both private and public property, (2) preventing conditions tending to encourage burglaries of temporarily unoccupied premises and (3) protecting the privacy of residents of the city. The Court finds that the ordinance does tend to effect those three purposes.

We concur in these findings.

Adopting the test stated in Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951) that constitutionality "turn(s) upon a balancing of the Conveniences between some householders' desire for privacy and the publisher's right to distribute publications in the precise way that those soliciting for him think brings the best results," (Emphasis supplied) 341 U.S. at 644, 71 S.Ct. at 933, the Chancellor held that the public interest in preventing littering and burglaries are substantial and legitimate interests which are effectively served by the ordinance in question and that these interests substantially outweigh the First Amendment rights affected by the ordinance insofar as the rights affected involve commercial communication.

But, said the Chancellor:

this ordinance undertakes to regulate the delivery of non-commercial handbills . . . in the same manner as it regulates commercial handbills. . . . The definition of "non-commercial handbill" clearly includes communications which are at least arguably religious, political or artistic.

As our discussion indicates, we are not in accord with this portion of the Chancellor's analysis. Ideological materials clearly are exempt from the definition of non-commercial handbills.

Further, the Chancellor says:

(s)uch non-commercial...