UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: March 19, 1975.
AD-EXPRESS, INC.; REX KITCHEN, PRESIDENT OF AD-EXPRESS, INC.; ANDREW GALLO, INDIVIDUALLY AND PRESIDENT OF ANDY GALLO CONSTRUCTION CORP., D/B/A 4 SEASONS VARIETY STORE; AND PENNY WEBER, PLAINTIFFS-APPELLANTS,
JOHN F. KIRVIN, SUPERVISOR OF THE TOWN OF ROTTERDAM, NEW YORK; BENJAMIN WOLLNER, FRANCIS L. STONE, PETER LA MALFA, AND WILLIAM OSTA, MEMBERS OF THE TOWN BOARD OF THE TOWN OF ROTTERDAM; EDWARD LONGO AND JOHN LA MALFA, TOWN JUSTICES OF THE TOWN OF ROTTERDAM; AND JOSEPH S. DOMINELLI, CHIEF OF POLICE OF THE TOWN OF ROTTERDAM, DEFENDANTS-APPELLEES
Appeal from an order entered in the Northern District of New York, James T. Foley, Chief Judge, dismissing, for failure to state a substantial federal claim, a complaint that challenged on federal constitutional grounds an ordinance of the Town of Rotterdam, New York, which prohibits distribution of advertising or samples to homes without the prior consent of the occupants.
Friendly, Timbers and Gurfein, Circuit Judges.
Author: Per Curiam
This appeal presents again a slight variation of the oft-litigated issue of whether a municipality may regulate the distribution of commercial advertising without infringing rights guaranteed by the First and Fourteenth Amendments.
The issue here arises in the context of a judgment entered November 6, 1974 in the Northern District of New York, James T. Foley, Chief Judge, dismissing, for failure to state a substantial federal claim, a complaint that challenged on federal constitutional grounds*fn1 an ordinance of the Town of Rotterdam, New York, which prohibits distribution of advertising or samples to homes without the prior consent of the occupants. For the reasons below, we affirm.
Appellants are engaged in the business of distributing printed advertising materials and samples. They package and leave these materials and samples in plastic bags attached to the door knobs of homes or tied to rural delivery mail boxes. Appellees are officials of the Town of Rotterdam responsible for enforcement of the ordinance involved.
The ordinance prohibits, without the prior written consent of the occupant of the home, the leaving of advertising materials or samples at any home within the Town of Rotterdam, whether left in a hanging bag or otherwise. The ordinance does not apply to distribution of advertising through the United States Postal Service, to distribution of newspapers of general circulation, or to distribution by charitable or non-profit organizations.*fn2
With respect to appellants' claim that the ordinance violates their rights to freedom of speech and press, we believe the point of departure is Valentine v. Chrestensen, 316 U.S. 52, 86 L. Ed. 1262, 62 S. Ct. 920 (1942). There the Court first said that, while states and municipalities may appropriately regulate the privilege of using the streets to communicate information and disseminate opinion, they may not unduly burden or proscribe the employment of that privilege in public thoroughfares. The Court then went on to say:
"We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment." 316 U.S. at 54.
See Pittsburgh Press Co. v. Pittsburgh Commission On Human Relations, 413 U.S. 376, 384-87, 37 L. Ed. 2d 669, 93 S. Ct. 2553 (1973).
We hold that, since the Constitution imposes no restraint on government with respect to purely commercial advertising in the public streets, it is a fortiori true when it comes to protecting householders from acts of trespass.
We have carefully considered appellants' claim that the ordinance goes beyond prohibiting the dumping of advertising material on homes in that its prohibition against bags apparently would apply to bags which contained political leaflets, for example, as well as advertising materials or samples. We are not persuaded that any significant First Amendment interest is infringed by an enactment that permits political leaflets and the like to be distributed free on their own while denying the authors the privilege of enclosing them in a bag containing advertising materials or samples. In Valentine the Supreme Court was confronted with an analogous contention by the advertiser "that, in truth, he was engaged in the dissemination of matter proper for public information, none the less so because there was inextricably attached to the medium of such dissemination commercial advertising matter." 316 U.S. at 55. The Court's rejection of that contention in Valentine strikes us as even more compelling here: "If that evasion were successful, every merchant who desires to broadcast advertising leaflets in the streets need only append a civic appeal, or a moral platitude, to achieve immunity from the law's command." Id. And while the language in cases such as Martin v. Struthers, 319 U.S. 141, 87 L. Ed. 1313, 63 S. Ct. 862 (1943), is indeed broad, its applicability is clearly restricted to persons like the appellant in that case, a Jehovah's Witness who was espousing particular ideas without any commercial element.
With respect to appellants' claim that the ordinance violates their equal protection rights because of the exemptions provided for in Section 2, we believe it is sufficient to note the obvious -- that the Town of Rotterdam could not regulate what may be distributed through the United States Postal Service; that most newspapers of general circulation are distributed on a subscription basis, making the exemption at worst unnecessary;*fn3 and that there is a rational basis for distinguishing between advertising materials distributed for profit and materials distributed by charitable or non-profit organizations.
Finally, we hold that appellants' due process claim is foreclosed by Breard v. Alexandria, 341 U.S. 622, 629-33, 95 L. Ed. 1233, 71 S. Ct. 920 (1951).
We vacate the stay against enforcement of the ordinance which we entered earlier pending appeal.