City of Akron v. Molyneaux

While I concur with the majority opinion with respect to assignment of error two, I respectfully dissent from the majority's holding regarding assignment of error one, the constitutionality of Akron Codified Ordinance 95.26. The ordinance qualifies as a reasonable restriction on the manner in which handbills may be distributed in the city of Akron. Therefore, we should uphold the ordinance because it is narrowly tailored to serve a significant government interest and it leaves open ample alternative channels for communication as required by law. Further, I write separately to express my view on assignment of error three, Defendant's claim of selective prosecution, which was not considered by the majority opinion.

The majority holds that Akron Codified Ordinance 95.26 is facially overbroad and, therefore, unconstitutional. The principle of overbreadth is designed to protect an individual's First Amendment rights. Under this principle, a statute is unconstitutional if it seeks to legitimately regulate activities "by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama (1964), 377 U.S. 288, 307, 12 L. Ed. 2d 325, 338. In applying this rule, the Supreme Court has also held that when the statute regulates conduct, as compared to speech, the language must be substantially overbroad before it will be found unconstitutional. Broadrick v. Oklahoma (1973),413 U.S. 601, 615, 37 L. Ed. 2d 830, 842. Facial invalidation "is, manifestly, strong medicine" that "has been employed by the [United States Supreme] Court sparingly and only as a last resort." Id.,413 U.S. at 613, 37 L.Ed.2d at 841. See, also, FW/PBS, Inc. v. Dallas (1990), 493 U.S. 215, 223, 107 L. Ed. 2d 603, 616 (noting that "facial challenges to legislation are generally disfavored.") The First Amendment does not confer an absolute right to engage in expressive conduct whenever, wherever or in whatever manner a speaker may choose. Greer v. Spock (1976), 424 U.S. 828, 836, 47 L. Ed. 2d 505, 513.

Akron Codified Ordinance 95.26 provides:

Placing on Vehicles

No person shall throw or deposit any handbill in or on any vehicle. However, it shall not be unlawful in any public place for a person to hand out or distribute without charge to the receiver thereof, a handbill to any occupant of a vehicle who is willing to accept it, subject to the limitations prescribed in § 77.09.

Even if Akron Codified Ordinance 95.26 inhibits an individual's right to freedom of expression in some few instances, this effect is not substantial and is clearly outweighed by the City's interest in preventing litter. The ordinance does not attempt to regulate speech, but instead deals with a legitimate problem by calling for a moderate and reasonable regulation of certain conduct to resolve the problem. Under these circumstances, it cannot be said that the ordinance is so overbroad as to warrant a finding of unconstitutionality.

Defendant also contends that Akron Codified Ordinance 95.26 is unconstitutional because it does not survive intermediate scrutiny as a content-neutral regulation of speech. The principle inquiry in determining whether a regulation of speech is content-neutral is "whether the government has adopted [the] regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism (1989), 491 U.S. 781, 791, 105 L. Ed. 2d 661, 675. The government's purpose in enacting the regulation is the controlling inquiry. Id. Where a regulation is content-neutral, a municipality "may impose reasonable restrictions on the time, place, or manner of protected speech, provided * * * that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." (Citations omitted.) Id. Further, as noted by the majority, the law requires that the government establish a reasonable fit between the asserted goal and the ordinance chosen to accomplish that goal. Cincinnati v. Discovery Network (1993), 507 U.S. 410, 416,123 L. Ed. 2d 99, 108.

The requirement of narrow tailoring is satisfied "[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative." Ward,491 U.S. at 800, 105 L.Ed.2d at 681. This Court has previously held that a city's goal of maintenance of its appearance is substantial. Davis v.City of Green (1995), 106 Ohio App. 3d 223, 228. The United States Supreme Court has found that the government has a substantial interest in promoting the safety and aesthetics of its cities. Members of the CityCouncil of Los Angeles v. Taxpayers for Vincent (1984), 466 U.S. 789,806-807, 80 L. Ed. 2d 772, 788; Metromedia Inc. v. San Diego (1981),453 U.S. 490, 507-508, 69 L. Ed. 2d 800, 815.

Applying this framework to the instant case, both parties acknowledge in their briefs and I agree that the ordinance at issue is content-neutral. There is no language in Akron Codified Ordinance 95.26, or in any other section of Akron Codified Ordinances Chapter 95, to indicate that the City disagrees with, or is monitoring, the content of handbills distributed in Akron. The ordinance addresses placing handbills on vehicles, without regard to the content of the handbills. Accordingly, Akron Codified Ordinance 95.26 is content-neutral. As such it is subject to the time, place, and manner restrictions set forth inWard.

With respect to the requirement that the ordinance be narrowly tailored, Defendant argues that it is not narrowly tailored and suppresses more speech than is necessary, since a vehicle owner could put a sign on his dashboard advising handbill distributors that he does not want to receive a handbill. To support this proposition Defendant relies on a number of United States Supreme Court opinions that address whether a government regulation burdens substantially more speech than necessary to further the underlying government interest.

First, Defendant relies on Bolger v. Youngs Drug Prods. (1983),463 U.S. 60, 77 L. Ed. 2d 469, where the Court held that a statute that prohibited all mailing of unsolicited mail advertising contraceptives was not narrowly tailored to serve the goal of screening such materials from the view of children. Id., 463 U.S. at 73, 77 L.Ed.2d at 482. It found that recipients of unwanted mailings could avoid the mailings by throwing them away. Id., 463 U.S. at 72, 77 L.Ed.2d at 481. Defendant also relies onSchneider v. State (1939), 308 U.S. 147, 84 L. Ed. 155, where the Supreme Court held that ordinances that absolutely prohibited handbilling on the streets were invalid. Id., 308 U.S. at 162-63, 84 L.Ed. at 165-66. Defendant also cites to Martin v. City of Struthers (1943), 319 U.S. 141,87 L. Ed. 1313. There, the Court invalidated a city ordinance prohibiting knocking on the door or ringing the doorbell of any residence for the purpose of distributing literature. The Court held that the ordinance was not narrowly tailored to serve the goal of protecting citizens from being disturbed in their homes because the householder could advise the visitor that he did not wish to receive the information. Id.,319 U.S. at 146-48, 87 L.Ed. at 1319.

Contrary to Defendant's contentions, I am convinced that the ordinance is narrowly tailored to serve the City's significant concerns for the protection of aesthetic values of the city. The ordinance prohibits a person from throwing or depositing a handbill in or on a vehicle without the occupant's willingness to receive it, while allowing the distributor to give the handbill to a willing receiver. This restriction is clearly and specifically designed to prevent unwanted handbills from becoming the city's litter. Further, the ordinance is a subsection of Akron Codified Ordinances Chapter 95, the "Akron Anti-Litter Chapter." The title signifies that the chapter, which includes subsection 95.26, was enacted to prevent littering and thereby maintain the city's appearance, a significant government interest. Unlike the absolute ban on unsolicited mailing and handbilling in the Bolger and Schneider cases, respectively, Akron Codified Ordinance 95.26 does not strictly ban the distribution of handbills. It merely regulates the manner in which handbills may be distributed.

Next, Defendant argues that the ordinance is not narrowly tailored because vehicle owners could put a sign on the dashboard of their car stating that they do not want to receive handbills. In Martin, the Court found that householder could tell an unwanted visitor or solicitor that he did not wish to be disturbed and did not want to receive unwanted literature. Martin, 319 U.S. at 146-48, 87 L.Ed. at 1319. Thus, when the unwilling recipient unexpectedly encountered a visitor distributing literature, he merely had to verbalize his desire not to receive the literature. In the instant case, the unwilling recipient would be expected to anticipate the receipt of objectionable material and, further, to prepare a sign to place on the car dashboard each time he plans to park his car and exit the vehicle. I find this to be a much greater burden to place on an unwilling recipient of such information, than the burden approved of by the United States Supreme Court in Martin. Accordingly, I would find that Akron Codified Ordinance 95.26 is narrowly tailored to serve Akron's significant government interest in maintaining its appearance.

It must also be demonstrated that the challenged ordinance leaves open ample alternative channels for communication of the information. Defendant contends that Akron Codified Ordinance 95.26 leaves Defendant with no alternative means to convey his message anonymously.

The Supreme Court has noted that an absolute ban on anonymous speech would violate the First Amendment. Buckley v. American ConstitutionalLaw Found. (1999), 525 U.S. 182, 199, 142 L. Ed. 2d 599, 614, citingMcIntyre v. Ohio Elections Comm'n (1995), 514 U.S. 334, 347, 357 (finding a law that prohibited the distribution of anonymous campaign literature to be unconstitutional). Further, requiring a distributor to identify himself and destroy his anonymity tends "to restrict freedom to distribute information and thereby freedom of expression." Talley v.California (1960), 362 U.S. 60, 64, 4 L. Ed. 2d 559, 563.

Akron Codified Ordinance 95.26 does not preclude Defendant from alternative channels of communication. In fact, it does not preclude him from the same channel of communication; it merely regulates the manner of his distribution. Notably, the ordinance does not ban anonymous speech. Defendant or other distributors of political views are free use other traditional mediums for publicizing a political viewpoint, such as passing out handbills person-to-person, posting messages on community bulletin boards, holding signs, and posting information on the internet.² Specifically, the posting of a message on a community bulletin board or posting information on the internet satisfies Defendant's desire to spread his message anonymously. It is not necessary to pin a handbill under the windshield wiper of a parked car in order to exercise one's constitutional guarantee to express opinions anonymously.

As a final step in this analysis, the ordinance must reasonably advance the City's significant interest in preventing litter and, thereby, maintain aesthetics. In Metromedia, 453 U.S. at 508, 69 L.Ed.2d at 815, the United States Supreme Court explained that where the source of the problem has been identified — here, the handbills being placed on parked cars — the "most direct and perhaps the only effective approach to solving the problems they create is to prohibit them." Id. Akron Codified Ordinance 95.26 does just that.

Accordingly, I would find Akron Codified Ordinance 95.26 to be a constitutional exercise of the City's right to regulate the time, place, and manner of distribution of handbills within its boundaries. For the foregoing reasons, I respectfully dissent from the majority's holding with respect to assignment of error one.

Regarding Defendant's third assignment of error, he argues that the trial court erred in denying his motion to dismiss the charge of littering because he was the only person prosecuted under the ordinance since its enactment. I disagree.

An appellate court reviews the trial court's denial of a motion to dismiss de novo. State v. Benton (2000), 136 Ohio App. 3d 801, 805. "A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." Statev. Getsy (1998), 84 Ohio St. 3d 180, 203. In State v. Flynt (1980),63 Ohio St. 2d 132, 134, the Ohio Supreme Court addressed the elements for establishing a selective-prosecution claim:

[t]o support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith,i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.

(Citation omitted.) In Cleveland v. Trzebuckowski (1999),85 Ohio St. 3d 524, 532, the Supreme Court broadened the second-prong of the test so as to include any selection deliberately based upon any arbitrary classification. Furthermore, the Ohio Supreme Court has held that "[a] mere showing that another person similarly situated was not prosecuted is not enough; a defendant must demonstrate actual discrimination due to invidious motives or bad faith." State v.Freeman (1985), 20 Ohio St. 3d 55, 58.

I would conclude that Defendant has failed to meet the heavy burden of establishing either prong of the selective prosecution test. There is no evidence in the record that Defendant was singled out for prosecution or that the prosecutor's decision to pursue criminal charges against Defendant was made in furtherance of some invidious purpose, in bad faith, or was based upon some unlawful consideration. Defendant's selective prosecution claim is without merit. Consequently, I would conclude that the trial court did not err in denying Defendant's motion to dismiss based on selective prosecution and I would overrule Defendant's third assignment of error.

² Defendant's brief indicates that he operates a website on which he posts his political views to the public.