April 7, 2004
Dear City Manager:
You have the following question: Can the city pass an ordinance regulating the
distribution of handbills or advertising within the City?
In theory, the answer is yes. But the ordinance cannot discriminate against the kind of
messages contained on the handbills or advertising. For that reason it is extremely difficult to
draft an ordinance that will pass legal muster for the simple reason that most such ordinances
attempt to exempt some messages that have particularly strong protection under the First
Amendment to the U.S. Constitution.
This problem is seen in Tennessee’s own case of H & L Messengers, Inc. v. City of
Brentwood, 577 S.W.2d 444 (Tenn. 1978). There the City of Brentwood passed an ordinance to
prohibit littering. However, the ordinance prohibited the distribution of commercial handbills,
but exempted the distribution of mail, newspapers, and political and religious material. The
Court held this ordinance invalid on a number of grounds. One of the grounds was that the
ordinance failed to accomplish its purpose:
With respect to each of these sections [in the ordinance] containing
exemptions in favor of ideological speech, we point out that it is
indisputably true that religious tracts or political leaflets cast upon
a citizen’s property constituted litter to precisely the same extent as
circulars advertising groceries. The exemption not only destroys
the indispensable content neutrality of the ordinance, but leaves it
standing upon a precarious position from a standpoint of its
purposes. [My emphasis.] [At 453]
Municipalities are between a rock and a hard place in adopting litter regulations of that
kind that attempt to satisfy the First Amendment with respect to political and religious material.
In fact, newspapers are often thrown upon property, some of which gather there, or are blown to
the winds. Those newspapers cause the same kind of litter as are caused by handbills. But good
luck to the municipality that attempts to tackle the newspapers on that issue.
The H.L. Messengers, Inc. Court did declare that:
We are instructed by Virginia Board of Pharmacy [the U.S.
Supreme Court case of Virginia Board of Pharmacy v. Virginia
April 7, 2004
Page 2
Citizen’s Consumer Council, 425 U.S. 748 (1976)] that
commercial speech may be regulated as to time, place and manner,
provided the restrictions (1) are justified without reference to the
content; (2) serve a significant governmental interest; and (3) leave
open ample alternative channels of communications. And we are
instructed by Erznoznik [the U.S. Supreme Court cases of
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)] that even a
time, place, and manner regulation may not discriminate solely on
the basis of content, and that speech may not be restrained because
of its “message, its ideas, its subject matter, or its content.” [At
452]
It is impossible to glean from that case what “time, place, and manner” restrictions
enforceable by the government on commercial speech in the form of handbills will pass legal
muster. In fact, H.L. Messengers, Inc., appears to almost make it impossible to adopt legally
sound time, place and manner handbill regulations with respect to private property. That was
still a problem under both federal and state law many years after that case was decided. But give
me some time to determine what the federal and state courts have done recently in the area of
time, place and manner restrictions that might pass legal muster. I have already plowed some
ground on this question since your management consultant brought your City’s problem to my
attention, so it should not take much additional time.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/