Pennsylvania Alliance for Jobs and Energy v. Council of Borough of Munhall

• Decision Date: 16 October 1984
• Docket Number: Nos. 83-5510,83-5759,s. 83-5510
• Citation: 743 F.2d 182
• Parties: PENNSYLVANIA ALLIANCE FOR JOBS AND ENERGY, Theresa J. Crimone, Phillip Schuller, Jr., Miriam Imblum, and Scott D. Hustead, Appellants, v. COUNCIL OF the BOROUGH OF MUNHALL, Chief of Police James Coyne, Mayor William Knight, and Police Officers Thomas Hilla and Richard Facchiano; Board of Supervisors of the Township of Moon, Township Manager William P. Walsh, and Chief of Police H. Thomas Krance; Town Council of the Town of McCandless, Secretary Mary Kovacsics, Chief of Police Patrick McCabe, and Patrolman William Fertig; Board of Supervisors of Richland Township, Secretary Dean Bastianini, Chief of Police James Hopper, and Police Lt. Richard Nalepa, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 182

743 F.2d 182

53 USLW 2171

PENNSYLVANIA ALLIANCE FOR JOBS AND ENERGY, Theresa J.

Crimone, Phillip Schuller, Jr., Miriam Imblum, and Scott D. Hustead, Appellants, v. COUNCIL OF the BOROUGH OF MUNHALL, Chief of Police James

Coyne, Mayor William Knight, and Police Officers Thomas

Hilla and Richard Facchiano; Board of Supervisors of the

Township of Moon, Township Manager William P. Walsh, and

Chief of Police H. Thomas Krance; Town Council of the Town

of McCandless, Secretary Mary Kovacsics, Chief of Police

Patrick McCabe, and Patrolman William Fertig; Board of

Supervisors of Richland Township, Secretary Dean Bastianini,

Chief of Police James Hopper, and Police Lt. Richard Nalepa,

Appellees.

Nos. 83-5510, 83-5759.

United States Court of Appeals, Third Circuit.

Argued March 5, 1984.

Decided Sept. 10, 1984.

Rehearing Denied Oct. 16, 1984.

Thomas R. Asher (argued), Ira R. Nerken, Washington, D.C., Thomas J. Kennedy, John Kissane Associates, St. Albans, Vt., Jon Pushinsky, Pittsburgh, Pa., for appellants; Thomas M. Cooley, II, Pittsburgh, Pa., of counsel.

David Kairys, Kairys, Rudovsky & Maguigan, Philadelphia, Pa., for amici.

Peter J. Taylor (argued), Arthur J. Murphy, Jr., Arthur J. Murphy, Jr. & Associates, P.C., Pittsburgh, Pa., for Council of Munhall, Richland Township, McCandless Township and Moon Township.

Gene E. Arnold, Weaver, Willman & Arnold, Pittsburgh, Pa., for Township of Richland.

James W. Dunn, Jr., Pittsburgh, Pa., for Township of McCandless, Kovacsics, McCabe, Fertig.

Louis Silverhart, Pittsburgh, Pa., for Council of the Borough of Munhall, Chief

of Police, J. Coyne, Mayor Wm. Knight, Police Officers, T. Hilla and R. Facchiano.

Before HUNTER, BECKER, Circuit Judges, and HOFFMAN, ^* District Judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This appeal arises from an order of summary judgment of the United States District Court for the Western District of Pennsylvania upholding the constitutionality of four local ordinances imposing time-of-day restrictions on and permit requirements for door-to-door solicitation. We will affirm the judgment of the district court.

I.

The appellant, Pennsylvania Alliance for Jobs and Energy ("PAJE"), ¹ is a non-profit charitable and educational organization working to influence energy policies. PAJE employees conduct door-to-door canvassing of homes in order to solicit funds and signatures on petitions.

Between September 1981 and March 1982, PAJE negotiated for canvassing permits from officials of the Pennsylvania towns of McCandless, Moon, Munhall, and Richland. PAJE received permits from all towns except Munhall, which exempted PAJE from its permit requirement. Each town advised PAJE that it would apply the time-of-day restrictions of its "transient vendor" ordinance to PAJE canvassers. Each of these transient vendor ordinances barred door-to-door canvassing after daylight hours, and two of them barred it after noon on Saturdays. ²

Because PAJE prefers to conduct its door-to-door canvassing from 4:00 P.M. to 9:00 P.M., PAJE canvassers violated the time-of-day restrictions of each of the transient vendor ordinances in question. PAJE operations ceased in these towns after PAJE employees engaged in after-hours canvassing were issued citations and threatened with arrest in McCandless, Moon, and Munhall, and were arrested in Richland.

PAJE commenced this action against the four towns in April 1983, seeking a declaratory judgment that the ordinances violate the first and fourteenth amendments, and damages and injunctive relief under 42 U.S.C. Sec. 1983 (1982). ³ On June 8, 1983, the district court entered an order of summary judgment, holding that those ordinances barring door-to-door canvassing after 5:00 P.M. Monday through Saturday were constitutional time, place, and manner restrictions, but that the ordinances imposing earlier deadlines were unconstitutional under the first and fourteenth amendments. ⁴ The district court also held that the permit requirements imposed by the ordinances are constitutional.

II.

We turn first to the question whether the prohibition of door-to-door canvassing after 5:00 P.M. Monday through Saturday violates the first and fourteenth amendments of the Constitution. Door-to-door canvassing for political and charitable purposes, while protected by the first amendment guarantee of freedom of speech, is subject to reasonable time, place, and manner restrictions. See Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17, 96 S.Ct. 1755, 1758-59, 48 L.Ed.2d 243 (1976); Martin v. City of Struthers, 319 U.S. 141, 146-47, 63 S.Ct. 862, 864-65, 87 L.Ed. 1313 (1943). In concluding that the time-of-day provisions at issue are reasonable time, place, and manner restrictions, the district court applied the test of Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Under Heffron, time, place and manner restrictions are reasonable if they are imposed "without reference to the content of the regulated speech, ... serve a significant governmental interest, and ... leave open ample alternative channels for communication ...." Id. at 648, 101 S.Ct. at 2564. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516, 101 S.Ct. 2882, 2897, 69 L.Ed.2d 800 (1981). PAJE argues that the district court erred in applying the Heffron "ample alternative channels of communication" standard rather than requiring that the time-of-day restrictions be the "least restrictive alternative" necessary to serve the governmental interest in question.

The applicability of the "least restrictive alternative" standard depends on whether, as PAJE contends, the time-of-day restrictions at issue are content-based and door-to-door canvassing is a public forum. In Tacynec v. City of Philadelphia, 687 F.2d 793 (3d Cir.1982), this court considered the standard by which time, place, and manner restrictions of first amendment activities are to be measured. We concluded there that the Heffron "ample alternative channels of communication" standard applies, unless the regulation in question is content-based. Then the more stringent "least restrictive alternative" standard is appropriate because, as Judge Adams noted, of the special "danger to First Amendment freedoms inherent in a content-based scheme of regulation." Id. at 798. See Frumer v. Cheltenham Township, 709 F.2d 874, 877 (3d Cir.1983). Restrictions of speech in public forums are also subject to heightened scrutiny under the first amendment. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972); Hague v. C.I.O., 307 U.S. 496, 515-16, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939). However, the Supreme Court has recently reiterated that viewpoint-neutral time, place, and manner restrictions of speech in non-public forums are to be measured by the Heffron "ample alternative channels of communication" test. See Members of the City Council of Los Angeles v. Taxpayers for Vincent, --- U.S. ----, ----, 104 S.Ct. 2118, 2133, 80 L.Ed.2d 772 (1984).

PAJE argues that the transient vendor ordinances that were applied to it are content-based because all of them exempt certain commercial activities from their coverage. ⁵ As applied, therefore, the ordinances' effect is to prohibit political and charitable canvassing at times when some commercial canvassing is permitted. This does not, however, render them content-based in the sense that triggers the "least restrictive alternative" standard. A regulation that is aimed at particular subject matters does not raise the spectre of government censorship as dramatically as one that is aimed at particular ideas or points of view. See Tacynec v. City of Philadelphia, 687 F.2d 793, 798 (3rd Cir.1982). At least in a non-public forum, a categorical proscription of political speech, even in a context where other types of speech are permitted, need not satisfy the "least restrictive alternative" standard so long as no viewpoint discrimination is present. See, e.g., Members of the City Council of Los Angeles v. Taxpayers for Vincent, --- U.S. ----, ----, 104 S.Ct. 2118, 2133, 80 L.Ed.2d 772 (1984); Greer v. Spock, 424 U.S. 828, 838-39, 96 S.Ct. 1211, 1217-18, 47 L.Ed.2d 505 (1976); Lehman v. City of Shaker Heights, 418 U.S. 298, 303-04, 94 S.Ct. 2714, 2717-18, 41 L.Ed.2d 770 (1974). The transient vendor ordinances in this case merely exempt certain commercial canvassing from regulations that extend to all other door-to-door canvassing, both commercial and non-commercial. ⁶ These exemptions are clearly viewpoint-neutral and do not mandate the "least restrictive alternative" standard.

PAJE also argues that the time-of-day restrictions must satisfy the "least restrictive alternative" standard because door-to-door canvassing is a "traditional" public forum. Door-to-door canvassing is clearly a traditional form of communication. See Martin v. City of Struthers, 319 U.S. 141, 145-46, 63 S.Ct. 862, 864-65, 87 L.Ed. 1313 (1943). Nevertheless, it is equally clear that not all traditional forums are public forums for purposes of first amendment analysis. In Members of the City Council of Los Angeles v. Taxpayers for Vincent, --- U.S. ----, ----, 104 S.Ct. 2118, 2133-34, 80 L.Ed.2d 772 (1982), the Supreme Court rejected a contention that public utility poles, traditionally used for posting political campaign signs, are a first amendment public forum. Similarly, in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), the Court held that advertising space on public buses is not a public forum. Whether a place is a public forum depends on "the nature of the place [and] 'the pattern of its normal activities....' " Grayned v. City of Rockford, 408 U.S. 104, 118, 92 S.Ct. 2294, 2304, 33 L.Ed.2d 222 (1972) (quoting Wright, The Constitution and the Campus, 22 Vand.L.Rev. 1027, 1042 (1969)). Door-to-door canvassing takes place in private homes. The...