A federal court judge ruled that Pittsburgh overreached in its attempt to ban leafletting of cars and distributing anything causing litter. -db
Pittsburgh Post-Gazette
October 14, 2010
By Ann Rodgers
A federal court judge has temporarily quashed a Pittsburgh law against leafletting unoccupied cars or distributing anything that can “cause litter.”
The case was brought by two abortion opponents, but took aim at a law inspired by entertainment promoters and drunken partiers. Exhibit A was a shot of East Carson Street, with scores of leaflets layered on the sidewalk.
After a hearing Wednesday, U.S. District Judge David S. Cercone ruled that the plaintiffs had “a reasonable probability of success” at trial and would be irreparably harmed by having their free speech restricted. The temporary restraining order runs through the election season, until the case’s next scheduled hearing Nov. 12.
“Today the court acted to protect one of the most fundamental rights of all Americans, the right to freedom of speech,” said Ed White of Ann Arbor, Mich., senior attorney for the American Center for Law and Justice. His clients, Albert Brunn and Kathleen Ramsey, wanted to put voter guides in the door jambs of cars parked on streets near churches.
City Councilman Bruce Kraus, who drafted the law, said that a temporary order “isn’t a death knell,” and that he believes the law is constitutional.
“I will continue to fight for the right to live in the city of Pittsburgh with public right-of-ways that are free from unsolicited materials, regardless of content, that are thrown to the ground and contribute to litter and urban blight,” he said.
The 2008 law forbids distribution of fliers or sample merchandise “so as to cause litter or unreasonably interfere with pedestrians or traffic.” It bans putting literature other than parking tickets on cars without permission.
Mr. White argued that the law was too broad and stifled free speech. He contended that litter wasn’t caused by people distributing leaflets but by drivers who later tossed the papers on the ground.
Assistant City Solicitor Michael Kennedy countered that the law addressed serious litter problems, didn’t target any message, and left people free to hand literature to willing recipients.
The city called four witnesses, the plaintiffs called none.
Mr. Kraus testified that he often spent days picking up leaflets from the South Side and other neighborhoods after they had been left on cars the night before. “They are almost always commercial advertisements . . . you see hundreds and hundreds in the streets,” he said.
The law wasn’t written to target any message, he said. “Content is completely irrelevant.”
Mr. Kraus said he often received complaints about leaflets from constituents, including one who had to replace the windshield on her new car after ink transferred from a wet leaflet.
Boris Weinstein of Shadyside, founder of Citizens Against Litter, testified that after the law was enacted, “I’ve seen less litter of commercial advertising on the streets . . . [They] look much better.”
Pittsburgh police Officer Clint Thimons, who works overtime on crowd control in the Strip District and on the South Side, said that people handing out leaflets often stand so close to bar doors at closing time that they cause back-ups and shoving among exiting patrons.
Judge Cercone questioned Mr. Kennedy about why the city didn’t focus on enforcing its main anti-littering law. Mr. Kennedy replied that an officer would have to witness each act in situations where there are hundreds.
“The act of placing a flier on someone else’s car is itself an act of littering,” he said. “If you are an unwilling recipient … it is nothing but garbage.”
He said that people are free to offer leaflets to other people, who can accept or refuse them. Mr. White countered that the law would leave such a person vulnerable if recipients later dropped leaflets on the ground.
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