Various forms of communication and the American Civil Liberties Union

The facts are not in dispute. Catlettsburg (pop. 1,960) lies at the confluence of the Ohio and Big Sandy rivers in northeast Kentucky, just over the line from West Virginia. In 1952 the town adopted an ordinance intended to deter unsightly litter. The statute makes it unlawful for any person to attach a handbill or advertisement to an automobile without the owner's written consent.

For 50 years the ordinance lay doggo on the books. Then, about 2002, the local American Legion post began using windshield fliers to promote its games in competition with the bingo games run by the local fire and police department. Bingo, indeed! Amazingly, prosecution followed.


Jobe is commander of the American Legion post. Backed by the American Civil Liberties Union, he took his grievance to the U.S. District Court in nearby Ashland. He lost there, and lost again last May on appeal to a panel of the 6th Circuit in Cincinnati. Judge Jeffrey Sutton, speaking for the panel, acknowledged that leafleting "is a venerable and inexpensive method of communication that has permitted citizens to spread political, religious and commercial messages throughout American history, starting with the half a million copies of Thomas Paine's 'Common Sense' that fomented the American Revolution."

This illustrious ancestry notwithstanding, a First Amendment right to speak through leaflet or pamphlet is not unlimited. Like other forms of public communication, leafleting is subject to content-neutral regulations restricting the time, place and manner of circulation. Lawn signs, for example, may be regulated or prohibited. In the Catlettsburg case at hand, though the town's ordinance wipes out the windshield as a advertising medium, alternative channels remain. Moreover, its defenders contend, the ordinance serves a legitimate public interest in prohibiting litter and visual blight.

Said Judge Sutton: "If the public forum doctrine does not apply to public items (e.g., utility poles) permanently located on public streets and sidewalks, it assuredly does not apply to private cars temporarily parked on public streets. ... If (the Supreme Court in a 1984 case) was wary about permitting citizens to co-opt utility poles to serve as bulletin boards and signposts, one would expect the court to be equally wary, if not more wary, of permitting citizens to co-opt privately owned cars to serve as receptacles for the distribution or display of literature and other information."

Windshields, the court observed, are private property, not public property. And allowing individuals to decide for themselves how their property may be publicly used "is a legitimate if not a compelling governmental interest."

Curiously, the Supreme Court never has taken a case involving windshield leafleting. In their argument to the 6th Circuit, Jobe's counsel cited such laws in 38 cities in 20 states. Among the cities are Atlanta, Charlotte, Philadelphia, Albany and San Antonio.

The leading case on the opposing side came out of Arkansas in February 1998. Here a group of evangelical Christians in Fort Smith, Van Buren, Alma and Dyer sued their townships for a right to pursue their ministry by leafleting windshields for their 20th Century Holiness Tabernacle Church. They lost in the District Court but won on appeal to the 8th Circuit.

Judge Theodore McMillian ruled for a three-judge panel that the suppression of litter was not a sufficient justification for the suppression of speech. He cited Supreme Court precedents holding that "the inconvenience of having to dispose of unwanted paper is an acceptable burden, at least as far as the Constitution is concerned." The Arkansas towns had not established "a factual basis for concluding that a cause-and-effect relationship actually exists between the placement of handbills on parked cars and litter that impacts the health, safety or aesthetic well-being of the defendant cities."

My own thought, speaking as one whose whole professional life is bound up in free speech, is that in these disagreeing courts, Arkansas beat Kentucky, i.e., the 8th Circuit beat the 6th. It takes mighty little time or trouble to remove a flier from a windshield. And if an irritated owner then throws the bothersome flier on the street, who's the litterbug now?

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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