Law 2 is such a reasonable restriction, because it allows the resident to affirmatively state he or she does not want to receive unsolicited material by being placed on a list, and limits distribution of unsolicited written material to residents who do not appear on such a list.
The Court is unpersuaded by the Village's contentions. In the Court's view, the Village's emphasis on a resident's right of privacy in their own home is inappropriate in this case. The speech at issue here does not intrude into the resident's home in the same way that picketing outside a person's home does. For this reason, Carey and Frisby are distinguishable. See Frisby, 487 U.S. at 485, 108 S. Ct. at 2503 ("We have been careful to acknowledge that unwilling listeners may be protected when within their own homes.. . . We have 'never intimated that the visitor could insert a foot in the door and insist on a hearing.' There simply is no right to force speech into the home of an unwilling listener.") (emphasis added, citation omitted).
Indeed, the Court believes the Village trivializes the right of privacy by equating the leaving of an unsolicited newspaper on a resident's porch to the kind of privacy intrusion that occurs when someone pickets outside a resident's home. Accord Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319, 1323 (2d Cir. 1974) (an "extraordinary showing of an invasion of privacy" is needed to overcome the presumption against the constitutional validity of a law prohibiting the distribution of leaflets).
The Court also disagrees with the concept that Local Law 2 is a reasonable time, place and manner restriction because it only precludes distribution to residents who have affirmatively indicated that they do not want to receive unsolicited material. In the Court's view, the Village's reliance on Martin and Rowan are misplaced.
In Martin, the Supreme Court struck down as unconstitutional an ordinance that made it unlawful for any person distributing leaflets and advertisements to ring the doorbell of a home or otherwise summon the resident to receive the material. In the course of its decision, the Supreme Court recognized that "the peace, good order and comfort of the community may imperatively require regulation of the time, place and manner of distribution." Id. 319 U.S. at 143, 63 S. Ct. at 863 (citing Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940)). The Supreme Court also noted that any privacy violations and other dangers to the resident arising from door-to-door distribution can be controlled by "leaving to each householder the full right to decide whether he will receive strangers as visitors," and "an explicit command from the owners to stay away." Martin, 319 U.S. at 147-48, 63 S. Ct. at 865-66.
In Rowan the Supreme Court was faced with a constitutional challenge to a postal statute. The statute mandated that the Postmaster issue, at an addresse's request and upon receipt of a notice from the addressee specifying that the addressee has received advertisements through the mail that he or she has found to be sexually offensive, an order directing the sender not send any further mailings to the addressee. Rowan, 397 U.S. at 730, 90 S. Ct. at 1487. Relying on Martin, the Supreme Court upheld the statute as constitutional because the statute provided for the home resident to affirmatively indicate he or she did not want the offensive material. Id. at 736-37, 90 S. Ct. 1490.
In the present case, although the Village resident may have given notice that he or she does not want to receive any unsolicited print or written material, the notice is not specific as to any particular material, as was the case in Rowan. Rather, Local Law 2 covers all unsolicited printed or written material, without regard to whether or not the resident is familiar with the publication, or what its contents are. Such a general restriction gives to the Village, in the Court's view, too much control in determining the distribution of "printed" or "written" material to Village residents, and effectively puts the government in the position of regulating the entire flow of printed and written information to Village residents. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 72, 103 S. Ct. 2875, 2883, 77 L. Ed. 2d 469 (1983) (federal statute making it unlawful to send unsolicited information concerning contraceptives struck down as unconstitutional: "We have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended.").
Moreover, this Court does not read Martin to state that a regulation prohibiting all distribution of materials to a home resident may be a reasonable time, place and manner restriction if the resident has indicated he or she does not want to receive unsolicited material. In this Court's view, Martin -- as is the case in Rowan -- must be read within the context that the homeowner has made an informed decision as to what solicitations he or she is excluding:
The ordinance does not control anything but the distribution of literature, and in that respect substitutes the judgment of the community for the judgment of the individual householder. It submits the distributer to criminal punishment for annoying the person on whom he calls, even though the recipient of the literature distributed is in fact glad to receive it.
Martin, 319 U.S. at 143-44, 63 S. Ct. at 863.
By proscribing the distribution of all unsolicited printed or written material, Local Law 2 restricts written information which Village residents have a right to receive, and if shown might want to receive, but because the information is designated as unsolicited never reaches the residents. This type of scheme potentially covers too much material from being distributed to Village residents, particularly news information they may want to see. In this respect, Local Law 2 "targets and eliminates" more than the exact source of the evil it seeks to remedy, Frisby, 487 U.S. at 485, 108 S. Ct. at 2503, and thus is not narrowly drawn to serve the "privacy" interests of Village residents.
Similarly, in the Court's view neither is the ordinance narrowly tailored to serve the Village interests in preventing burglaries or litter. With respect to preventing burglaries, the Court is unconvinced that the ordinance will substantially affect the rate burglaries. Indeed, there is an inconsistency in the Village's restricting the distribution of unsolicited material on the premise that such material accumulates at a doorstep or mailbox and may foster a burglary, while allowing the accumulation of solicited material at a mailbox or doorway. See, e.g., Ad World, 672 F.2d at 1140.
Likewise, the Court is unconvinced that the ordinance is narrowly tailored to prevent litter. Solicited materials can blow off a porch or mail box and create litter as well. Similar contentions concerning the prevention of litter were rejected by the Supreme Court in Martin, 319 U.S. at 143, 63 S. Ct. at 863 (The privilege of the freedom to distribute may not be withdrawn "even if it creates a minor nuisance for a community of cleaning litter from its streets."), and in Schneider v. State of New Jersey, 308 U.S. 147, 162, 60 S. Ct. 146, 151, 84 L. Ed. 155 (1939) (the burden imposed on a city for cleaning litter as an indirect consequence of the distribution of leaflets does not outweigh the First Amendment right to distribute information to those who want to receive it; "There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets.").
Finally, the Village contends that the registration provisions in section 3B of Local Law 2, namely that distributors provide identification of the organization, persons and vehicles delivering or distributing the written material, are required in order for the Village to identify who actually is delivering the material, and to ensure that the proper parties are held legally accountable for any wrongdoing in the distribution of materials to town residents. The Court recognizes that requiring distributors to furnish such information may be reasonable in light of the Village's duty to protect its resident's from fraudulent solicitations. See Cantwell, 310 U.S. at 306, 60 S. Ct. at 904. Assuming that section 3B purports to serve this interest, as well as the Village's interests in preventing crime and litter, the Court believes that the section is impermissibly underinclusive. Ladue, 114 S. Ct. at 2043. The section does not allow for the registration of distributors of unsolicited mailed material, or the registration of distributors of unsolicited non-printed or non-written material.
Accordingly, for the reasons stated above, it is the Court's view that Local Law 2 is not a reasonable time, place and manner restriction on the distribution of unsolicited print and other written material. Rather, Local Law 2 acts as a prior restraint on the distribution of all written material, because it requires the distributer to first (1) register with the Village Clerk, (2) submit background information, and (3) receive a list of residents who do not want to receive any "unsolicited print or other written material", before being allowed to distribute information to Village residents. This kind of an ordinance is inimical to the freedom of the press, and cannot be constitutionally upheld. See Ad World, 672 F.2d at 1141.
The Court acknowledges that the present ordinance is much improved over the licensing scheme that was first enacted by the Village and subsequently struck down by this Court. Indeed, the Court commends the Village's efforts to attempt to arrive at an ordinance that serves the various Village interests without running afoul of the First Amendment. However, it is the Court's opinion that because the press' right to distribute information to the public is such a fundamental First Amendment right, and because door-to-door distribution of written material is an important aspect of public debate and essential to the communications of poorly financed causes, see Martin, 319 U.S. at 146, 63 S. Ct. at 865, and Council of Greenburgh Civic Assns. v. United States Postal Service, 586 F.2d 935, 937 (2d Cir. 1978) (Kaufman, J. concurring), every attempt must be made to ensure that the government does not restrict from distribution any more information than is truly not wanted by the recipient.
In this case, the ordinance enacted by the Village of Old Westbury would preclude Village residents from receiving printed and written material they have a First Amendment right to receive, on the basis of an uninformed decision by the resident that categorically applies to "unsolicited" printed or written publications. In doing so, the ordinance sweeps with a broad brush, and cuts away at the First Amendment's protection of a free press by precluding efforts to distribute information to Village Residents on important issues facing the community, such as the upcoming referendum on the Nassau County Legislature and the accompanying revisions to the Nassau County Charter.
In light of the difficulties inherent in undertaking to restrict the distribution of newspapers to the public, the Court believes the more prudent approach is for the government to refrain from paternalistically acting on behalf of the community, and to put the decision for rejecting and discarding the unwanted newspaper or leaflet where it belongs, on the recipient. The "short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the constitution is concerned." Bolger, 463 U.S. at 72, 103 S. Ct. at 2883 (quoting Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880, 883 (S.D.N.Y.), summarily aff'd, 386 F.2d 449 (2d Cir. 1967), cert. denied 391 U.S. 915, 20 L. Ed. 2d 654, 88 S. Ct. 1811 (1968)); Ad World, 672 F.2d at 1141.
Accordingly, for the reasons stated herein, it is hereby
ORDERED, that the plaintiff's motion for summary judgment is granted; it is further
ORDERED, that Local Law 2 of the Village of Old Westbury is declared unconstitutional under the First and Fourteenth Amendments to the United States Constitution, on its face and as applied to the plaintiff's distribution of This Week; it is further
ORDERED, that the Village of Old Westbury is permanently enjoined from enforcing or threatening to enforce Local Law 2; it is further
ORDERED, that the defendant's motion for partial summary judgment is denied; and it is further
ORDERED, that the parties are scheduled to appear before the Court on Friday, December 2, 1994 at 1:30 p.m. for a hearing on the plaintiff's damages under 42 U.S.C. § 1983 and attorneys' fees under 42 U.S.C. § 1988. The plaintiff is to submit its affidavit in support of its request for attorneys' fees and costs by Friday, November 4, 1994. The defendant is to file any objections by Friday, November 18, 1994.
Dated: Uniondale, New York
September 30, 1994
ARTHUR D. SPATT
United States District Judge
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