Miller v. City of Laramie

• Decision Date: 07 September 1994
• Docket Number: No. 93-182,93-182
• Citation: 880 P.2d 594
• Parties: 22 Media L. Rep. 2302 Gerald R. MILLER, Petitioner, v. The CITY OF LARAMIE, Respondent.
• Court: Wyoming Supreme Court

Page 594

880 P.2d 594

22 Media L. Rep. 2302

Gerald R. MILLER, Petitioner, v. The CITY OF LARAMIE, Respondent.

No. 93-182.

Supreme Court of Wyoming.

Sept. 7, 1994.

Christopher H. Hawks, Director, Lawyers and Advocates for Wyoming, Jackson, for petitioner.

Douglas K. Bryant of Corthell & King, Laramie, for respondent.

Before GOLDEN, C.J., and THOMAS, CARDINE ^*, MACY and TAYLOR, JJ.

CARDINE, Justice, Retired.

We granted a petition for review to consider Gerald R. Miller's claim that his right of free speech, as guaranteed by Art. 1, § 20 of the Wyoming Constitution and the First Amendment to the United States Constitution was abridged by the City of Laramie's littering ordinance. Petitioner Miller was convicted of the crime of littering for distributing his free newspaper, The Adviser, by house-to-house delivery.

We hold that the record here readily demonstrates that The Adviser burdened the City of Laramie in an extraordinarily minor way and that, likewise, the burden placed on the citizens of Laramie and private property in that city was exceedingly trivial. We are confident that the vast majority of citizens will agree that such insignificant and slight burdens are a small price to pay for a free society--and then hasten to add that even a solid majority may not extend its prohibitions in such a manner as to violate the United States or the Wyoming Constitutions. Therefore,

We reverse.

Miller articulates these grounds for appellate review:

A. The Petitioner's actions and conduct in causing copies of "The Adviser " to be placed on the front porches, in the yards and on the grounds of the homes of several Laramie residents is conduct entitled to protection under the First Amendment of the United States Constitution and Article One Section 20 of the Wyoming Constitution.

(i) The City of Laramie's interest in preventing the visual blight caused by the unrequested door-to-door distribution of the Petitioner's free weekly newspaper does not outweigh the defendant's fundamental rights of free speech, press and circulation.

B. Prosecuting Mr. Miller for littering is not a reasonable time, place and manner restriction on Mr. Miller's conduct because Mr. Miller did not exercise his right of free speech in a public forum.

(i) The District Court's reliance on Schenck v. The United States [249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919) ] to affirm the decision of the Municipal Court's conviction of Mr. Miller was a misapplication of the law and should be disregarded.

C. Prosecuting the publisher of a free weekly newspaper for littering violates his rights of equal protection when his paper is delivered consistent with other area papers with the exception that it is done so without subscription.

The City of Laramie abbreviates the controversy with this contention:

Whether application of the City of Laramie's litter ordinance to the unrequested placement of copies of The Adviser upon private residential properties violates the [Petitioner's] constitutional rights as to speech and press.

The First Amendment of the United States Constitution provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article 1, § 20 of the Wyoming Constitution provides:

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right; and in all trials for libel, both civil and criminal, the truth, when published with good intent and [for] justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law, under direction of the court.

The City of Laramie Municipal Ordinance § 8.20.030 provides:

It is unlawful for any person to throw, discard, place or deposit, or cause to be thrown, discarded, placed or deposited, litter in any manner or amount on any public or private property within the corporate limits of the city except in containers or areas lawfully provided therefor.

And Ordinance § 8.20.010(A) defining litter provides:

A. "Litter" is any quantity of uncontainerized paper, metal, plastic, glass, animal feces, or miscellaneous solid waste which may be classed as trash, debris, rubbish, refuse, garbage or junk.

Miller distributed a free weekly newspaper, The Adviser, in Laramie. Approximately 6,000 copies of the newspaper were delivered door to door by depositing the paper on the porches of residences and buildings. In some instances, the papers came to be on the lawns, driveways or sidewalks of Laramie residences. An additional 1,000 copies were distributed by other means such as news racks. Miller did not solicit subscriptions nor did he seek the consent of residents before making delivery. The Adviser contained community news; sources of free information on such things as recipes, voice programming, parenting, and healthful sleep; sports stories; television programming for the coming week; a crossword puzzle; horoscope column; gossip column; a children's page; want adds; and numerous advertisements.

Our recital of facts herein is from the exhibits, stipulated statement of evidence by the parties, and the record in this case. The audiotape transcript of testimony was erased by the clerk of the municipal court after the record was returned following appeal to the district court. The erasure occurred during the appeal process. Our choices at this point are to reverse and remand for new trial for lack of a record, through no fault of petitioner, or decide this appeal on the record before us. We think the exhibits, admissions, stipulation of the parties and record are sufficient for our decision in this appeal.

By information filed on February 1, 1993, Miller was charged with seven counts of littering based upon complaints made by seven Laramie residents. The complaints were tried before a municipal judge on March 22, 1993. Miller was found guilty on four counts and not guilty on one count (apparently because the testimony of that witness was to the effect that the paper was found on his porch; all others testified that the papers were found on their sidewalks, driveways or in their yards). The complaints which alleged littering on the same day were consolidated, resulting in the disposition of the other two counts. Miller was fined $50.00 per count and assessed $10.00 costs, for a total fine of $210.00.

A timely notice of appeal was filed, and the convictions were reviewed by the district court. Miller's only defense throughout trial, on appeal, and in this petition for writ of review is that the littering statute, as applied to the delivery of his newspaper, was a violation of his constitutional right of free speech and equal protection. The district court affirmed the convictions, finding that the restrictions created by the littering ordinance were reasonable time, place and manner restrictions on the right of free speech.

Miller's petition for writ of review in this court was granted September 29, 1993. The parties have agreed that the newspaper in question contained news, advertising and other information; and no question is directly posed as to whether it was commercial or noncommercial speech. It is a necessary first step in our analysis, however, to expressly acknowledge that, because of its varied content, the newspaper must be categorized as noncommercial. See Ad World, Inc. v. Township of Doylestown, 672 F.2d 1136, 1139-40 (3rd Cir.1982). Because it is noncommercial speech, it is entitled to the full protection of the First and Fourteenth Amendments of the United States Constitution, as well as Art. 1, § 20 of the Wyoming Constitution. See Edenfield v. Fane, 507 U.S. 761, ----, 113 S.Ct. 1792, 1798, 123 L.Ed.2d 543, 552-53 (1993); Ad World, 672 F.2d at 1140. Purely commercial speech is tested against a more relaxed standard. Edenfield.

Miller has maintained from the beginning that the Laramie ordinance was unconstitutional as applied to the distribution of his newspaper. The general rule is that one who alleges unconstitutionality bears a heavy burden and must clearly and exactly show the unconstitutionality beyond any reasonable doubt. Pauling v. Pauling, 837 P.2d 1073, 1076 (Wyo.1992). However, that rule does not apply where a citizen's fundamental constitutional right, such as free speech, is involved. The strong presumptions in favor of constitutionality are inverted, the burden then is on the governmental entity to justify the validity of the ordinance, and this Court has a duty to declare legislative enactments invalid if they transgress that constitutional provision. See Witzenburger v. State ex rel. Wyoming Community Dev. Auth., 575 P.2d 1100, 1114 (Wyo.1978), reh'g denied 577 P.2d 1386. The rule we apply under the circumstances of this case is:

Where rights, privileges, and immunities of the citizen are involved, the usual strong presumption in favor of constitutionality does not apply, and this rule is applicable to First Amendment rights. This is true in situations involving the right of freedom of expression or thought, or of speech, or association, or of the press, or of religion. Under some authority, the usual presumption in favor of constitutionality is merely weaker where the statute arguably inhibits fundamental rights.

Indeed, it is the rule that where the governmental action impinges on a fundamental constitutional right the usual presumption is inverted, and the presumption, sometimes characterized as heavy, is against the constitutionality of a statute or governmental action involving a right explicitly or implicitly secured by the Constitution, including a right secured by the First Amendment, such as freedom of speech or expression. Moreover, every reasonable presumption against waiver of fundamental constitutional rights is indulged by the courts and they do not...