Quote of the Day - This is not the age of pamphleteers. It is the age of the engineers. The spark-gap is mightier than the pen. Democracy will not be salvaged by men who talk fluently, debate forcefully and quote aptly.
Why Not Also In Our Mailboxes? Why Not Federal Legislation?
Maryland is considering legislation that would ban free newspapers from being delivered to unwanted driveways. You can probably tell from the sub-headline, I'm against the delivery of unwanted newspapers. Try as I might, a free newspaper in our area, the Irvine World News, continually gets delivered to my driveway despite my efforts to the contrary.
According to this Newsweek article by Reporter Kristen Wyatt, the legal issues might preclude the legislation. The magazine notes, "The bill could prove a legal morass, said T. Barton Carter, a media law expert at Boston University. It's uncertain how valuable a 'Do Not Call' analogy is, he said. 'Usually, when you're talking about print media and just delivering it to the outside, that's not seen as intrusive as calls. So, it's not clear it would survive a similar First Amendment analysis,' Carter said."
While this argument may not be clear, it overlooks the balancing test used in a First Amendment analysis. As part of this Constitutional analysis, Maryland must demonstrate a compelling state interest to overcome the preference for free speech, and instead impose only reasonable time, place and manner restrictions. What possible compelling state interest could we assert?
How about littering? Trespass? Waste?
And what about those reasonable time, place and manner restrictions? Well, let's see whether they even apply. By prohibiting the delivery of free newspapers, are we prohibiting speech? Not really. We're just limiting its dissemination to willing readers, and prohibiting its dissemination to unwilling listeners.
Think about it from the soapbox or pamphleteer's perspective. We can't stop the woman from standing on the soapbox in a public place and speaking her mind. We can, however, prohibit her from mounting loudspeakers on that soapbox and pushing it through a residential neighborhood. While we may not be able to limit the pamphleteer from handing out her pamphlets, which ultimately litter the countryside, we can punish the pamphleteer for littering. Yes, in case you're wondering, those fact patterns are actual Supreme Court First Amendment cases, simplified greatly, but still true.
Here's the actual, three-part test to determine whether the restrictions are reasonable: 1. Are the restrictions justified without reference to the content of the regulated speech? 2. Are the restrictions narrowly tailored to serve a significant governmental interest? 3. Do the restrictions leave open ample alternative channels for communication of the information?
Admittedly in Maryland's statute, it's probably not content neutral since it applies only to commercial newspapers. Now on the other hand, if the legislature would prohibit the delivery of any unwanted material, then it would likely pass this first prong of the test. That limitation might put the U.S. Postal Service out of business. Then again, that result may not be a bad thing.
The prohibition on the free delivery of newspapers is likely not narrowly tailored to prevent littering. There are many other sources of litter beyond free newspapers, so in order for the legislation to be effective, everything free would be banned, including door hangers and the like, together with coupons and perhaps even free samples whose wrapping might end up on the street. Not a likely eventuality.
Finally, while alternative channels of communication may be open - such as newspaper racks and heaven help us, subscriptions, there's really only one way to distribute a free newspaper, and that's to put it in yours and my driveways.
Until we pass some workable legislation such as a national "Do not deliver" list that allows us to stop delivery of paper that passes our property lines except perhaps real, non-junk mail.