The Seventh Circuit recently invalidated the City of Granite's handbilling statute (one judge disagreed).  The decision touches on a few interesting issues regarding unsolicited communications.  (Access it here [pdf].)

First, the money quote from the dissenting judge:

The flyer does not trespass, the person does.

The procedural posture of the case was somewhat convoluted and influenced the outcome.  (I may not be 100% accurate in my description - be forewarned.) Basically, a handbiller got a ticket for violating a broad ordinance which prohibited "indiscriminate" handbilling.  The City altered the charge to violating an existing city trespass ordinance.  After paying the ticket the plaintiff challenged the handbilling ordinance.  In response to the challenge, the city revised the ordinance, in relevant part to prohibit the placement of handbills on vehicles or private property.  Plaintiff sought injunctive relief against the amended ordinance and moved for judgment on the pleadings.  The City opposed the request for injunctive relief and defended plaintiff's request for judgment on the pleadings without bothering to put forth new evidence.  (This is the procedural part which affected the court's decision.)

The district court granted plaintiff's request, going beyond it to invalidate the entire statute.  The City appealed.  The Seventh Circuit (2-1) rejected the City's appeal.

The majority first took issue with the City's argument that its ordinance only needed to be reasonable since it was aimed at expression which took place on a "nonpublic forum" (as opposed to a public forum, such as a park or sidewalk).  According to the City, the ordinance should not be subject to the typical time/place/manner First Amendment analysis.  The court clarified the difference between a "nonpublic forum" and "private property", and moved on to examine the district court's TPM analysis.

Here the majority bashed the City for not presenting any evidence of the harms which the City sought to address through the handbilling ordinance.  According to the court, neither the common sense arguments raised by the City nor the actual evidence it presented in the context of the preliminary injunction hearing were sufficient.  Ultimately, the court concluded that the City failed to put forth evidence as to how the City could not address visual blight/litter (and its other concerns) as effectively through other means.     

The dissent makes a couple of great points in my opinion.  Judge Manion agreed that the regulation was subject to a TPM analysis (not the lesser standard  the City argued in favor of).  However, in his view the ordinance was a valid means of achieving the City's goal of dealing with "unwanted intrusion, trespass, harassment, and litter."  For him this conclusion was obvious enough that no specific evidence was needed to reach it.  In any event, the City did put forth some evidence - evidence from a security guard at a reproductive health clinic that he did not appreciate the handbills the plaintiff left on (and in one instance inside) his car.

One key point of disagreement between the majority and dissent makes this an interesting case - the City argued that the current iteration of the ordinance still allows someone to approach a pedestrian or an occupied vehicle and ask if they want to receive a pamphlet.  According to the City, this is what traditional handbilling is all about.  According to the City (and Judge Manion) the prohibition on leaving a pamphlet at an unoccupied premises or vehicle doesn't reach traditional handbilling.  (A point worth mentioning is that the majority argues that the fact that the plaintiff's conduct was covered under the trespass statute demonstrates that the handbilling ordinance was not necessary.  There's already a law that regulates the conduct at issue.  But as the dissent rightly points out, there's no trespass when someone leaves a handbill on an unoccupied vehicle.  The ordinance covers conduct which the trespass ordinance does not cover - situations where there's no one there to object to the intrusion.)  (I was curious about historical evidence on the issue of "traditional handbilling," but I wasn't persuaded by Judge Manion's take on this.)

All in all, the opinion is a fairly interesting read.  It makes you wonder about the First Amendment standards that apply in the context of regulating other unsolicited communications.  (In my mind, a person's car or other private property is similar to a mailbox or email inbox . . . or is it?)  As much as I would like to see a ruling which favors the First Amendment, my gut feel is that the majority got it wrong.  At least there should be room to tweak the statute to address the court's concerns, but I'm not sure how the City will go about addressing those concerns at this point.  It will be interesting to see if the City further appeals.  Although they risk racking up more fees on both sides, I would recommend considering it.

NB: - looks like the MBTA gag order was lifted.  Threat Level reports here.