A study recently was undertaken of Chapter 9.60 of the Sunnyvale Municipal Code, which regulates "advertising and printed matter." The purpose of the study was to determine whether the Chapter, which was originally enacted in 1949, complies with the requirements of the First Amendment as currently expressed by the courts. Based on this study, a number of constitutional problems with Chapter 9.60 have been identified.

As a result, the City Attorney recommends that the Council take the following action:

1. Repeal Sections 9.60.050, 9.60.70, and 9.60.080 pertaining to the distribution of advertising and printed matter on private property.

2. Amend Section 9.60.020 to provide that distribution of advertising and printed matter "in violation of the Chapter" (instead of "without regulation") is declared a public nuisance.

3. Amend Section 9.60.90 to provide that (a) it is unlawful to distribute any printed matter, advertising sample or device, to any private property where a conspicuous sign has been posted prohibiting such distribution; and (b) that any printed matter, advertising sample, or device delivered to private property must be distributed in such a manner that it will not be blown or carried by the wind.

While many residents are understandably annoyed and bothered by the barrage of advertising, pamphlets, brochures and so on they receive on their doorsteps and windshields, the Constitution places strict limits on what the City can do to address this annoyance through government regulation.

Chapter 9.60 of the Sunnyvale Municipal Code was enacted in 1949 (as Chapter 4-8 of the prior Municipal Code) and, except for minor amendments, it has remained essentially unchanged since then. The express purpose of the chapter is to prevent litter. As originally enacted, the provisions made it unlawful to "throw, cast, distribute, scatter, deposit or place" any "handbill, dodger, circular, newspaper, paper, booklet, poster, or any other printed matter or literature" or any "advertising sample or device" in the following places:

• In any public place, "except that the same may be personally delivered to those who are willing to accept the same."

• In any automobile or other vehicle "without first having obtained permission of the owner."

• On any private property "without having first obtained permission of the owner, or of any adult resident or occupant thereof."

In 1958, the chapter was amended to provide an exception for "newspapers of general circulation" subject to certain conditions.

In 1972, then-Judge Edward Panelli of the Santa Clara County Superior Court struck down the sections of the ordinance that prohibited leaving printed material, advertising samples or devices on private property. The judge relied on a (then) recent case from the California Supreme Court that had overturned a virtually identical ordinance from the city of Van Nuys. In response, the City added the sentence that still appears at the end of §9.60.070: "This section is not intended to prevent the lawful distribution of anything other than commercial or business advertising literature, samples or devices." The City Attorney at the time believed this sentence resolved the constitutional objections because, in 1972, the courts had not yet held that commercial advertisers have a right to free speech.

Legal Developments Since 1972. Over the last 30 years, the U.S. Supreme Court, the California Supreme Court, and the federal and state appellate courts have issued dozens – if not hundreds – of opinions concerning freedom of speech and freedom of press issues. The definition of constitutionally-protected speech has gradually expanded. This expansion has correspondingly limited the government's ability to regulate activities, like advertising, that have free speech implications.

In 1976, for the first time, the U.S. Supreme Court held that the First Amendment protects "commercial speech" – i.e., speech that does "nothing more than propose a commercial transaction." The Court revisited the issue in 1980, holding that regulations of commercial speech are permissible if they "directly advance" a "substantial" government interest, and are not "more extensive than necessary" to serve that interest. This is called the "Central Hudson" test.

While the Central Hudson test allows for somewhat greater regulation of commercial advertising than other forms of speech, it can be extremely difficult to draft regulations that adequately distinguish "commercial speech" from "fully protected speech." Newspapers and magazines, for example, usually contain large amounts of commercial advertising, while a given advertisement may include "fully protected" expressions of religious, social or political ideas (consider, for example, an advertisement for a religion-sponsored thrift store, or a sectarian or political fund-raiser).

In 1993, the U.S. Supreme Court struck down an ordinance from the city of Cincinnati that banned newsracks containing "commercial handbills" in certain downtown locations. The Court noted that, while commercial advertising has less constitutional protection than "traditional" free speech, "this very case illustrates the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category." The court also found that prohibiting "commercial handbills" had, at best, a miniscule impact on the number of newsracks in the city, and therefore did nothing to prevent litter or visual blight.

In 1994, a California appellate court likewise struck down an ordinance from the city of Fresno that made it unlawful to distribute "advertisements or unauthorized newspapers" to businesses or residences where the owner had posted a conspicuous sign prohibiting such distribution. The court held that, even if the city had a compelling interest in preventing litter and ensuring residential privacy, there was no evidence that "advertisements and unauthorized newspapers contribute to these problems while other categories of written materials do not." The court noted that religious tracts, political pamphlets, and leaflets soliciting charitable contributions are just as intrusive and equally likely to blow into the street. Thus, the ordinance placed undue restrictions on free speech without accomplishing the city's stated purpose.

In 1998, the Ninth Circuit Court of Appeals struck down an ordinance from Las Vegas which made it unlawful to distribute handbills advertising "commercial transactions," "products" or "services" in certain locations. The court held that the ordinance was unconstitutional because it prohibited not just commercial speech, but also fully protected speech that was "inextricably intertwined" with commercial speech, such as newspapers containing advertisements, or advertisements for charitable fund-raisers.

Also in 1998, the Eighth Circuit Court of Appeals struck down an ordinance from the city of Van Buren, Arkansas, that made it unlawful to place handbills or advertising on vehicle windshields. The court basically held that the city's interest in preventing litter and protecting residents from annoyance was not sufficiently compelling to justify the restriction: the court noted that the "the inconvenience of having to dispose of paper" is an "acceptable burden, as far as the Constitution is concerned." In 2001, a court in Ohio reached the same conclusion about a substantially similar ordinance. The court there quoted from a 1939 decision from the U.S. Supreme Court which had held that a city cannot prohibit the distribution of handbills to willing recipients:

The most recent word from the U.S. Supreme Court on the subject of advertising came in 2001, in a decision about a Massachusetts law that restricted tobacco advertising. The Court found no evidence that limiting tobacco ads would actually serve the purpose of the law, which was to prevent tobacco use by minors. The Court also held that the government's legitimate desire to protect children did not justify restricting tobacco companies' ability to communicate with adult consumers about a lawful product. The Court emphasized that the First Amendment does not merely protect the right of advertisers to convey truthful messages about lawful products: it also protects the right of consumers to receive such information. This right has to be taken into account in crafting any advertising ordinance. In other words, some people may find a given advertisement bothersome or offensive, but others may find it useful and informative. The desire of the former group to avoid being bothered must be balanced against the constitutional right of the latter group to receive the advertising, as well as the right of the advertiser to communicate with consumers.

Acceptable Regulations. The cases discussed do not mean that cities are powerless to enact laws against activities that create litter or disturb residential privacy. The courts have long held that government can impose content-neutral "time, place, and manner" restrictions on the exercise of free speech. The difficult question: What restrictions are "reasonable"?

The U.S. Supreme Court has recognized two primary public interests that may justify content-neutral restrictions on advertising and printed matter: (1) cities may pass laws designed to preserve the appearance of their community by limiting visible advertising and signage; and (2) cities have a legitimate interest in protecting public property from damage. Relying on these interests, the Court has upheld ordinances that prohibit the posting of signs on utility poles or other public property. The Court also has held that cities can regulate the size and location of signs, and can restrict outdoor advertising like billboards.

In addition, the Court has held that there is a significant difference between laws that restrict "a speaker's right to address a willing audience and those that protect listeners from unwanted communication," reasoning that the "right to avoid unwelcome speech has special force in the privacy of the home." Thus, for example, the Court has upheld ordinances that prohibit picketing and demonstrations in front of private residences.

The balance of interests is different in every situation. People are understandably annoyed when they must continually discard flyers, tracts, and pamphlets that are left on their porches, doorknobs, and vehicles. However, courts view this burden as minimal compared to the burden on the First Amendment, if such activity were prohibited. Sixty years ago, the U.S. Supreme Court overturned an ordinance that required persons to obtain a permit in order to distribute literature door-to-door, noting:

While in theory, distribution of commercial advertising has less constitutional importance than expression of religious and political ideas, any attempt to regulate the distribution of commercial advertising while carving out exceptions for "non-commercial" speech means that the ordinance will not be content-neutral, and will almost inevitably fall victim to the Constitutional pitfalls vagueness and overbreadth.

The following is a section-by-section analysis of the nine sections of Chapter 9.60 of the Sunnyvale Municipal Code based on the legal principles discussed above.

(1) 9.60.010. Posting or distributing notices.

• Analysis of 9.60.010: no change. Ordinances prohibiting the posting of signs, etc., on public property have been upheld by the courts as long as the prohibition is not selectively enforced.

• Analysis of 9.60.030: no change. Similar ordinances have been upheld by the courts as acceptable prohibitions against littering.

• Analysis of 9.60.040: no change. Similar ordinances have been upheld by the courts as an acceptable prohibitions against littering.

• Analysis of 9.60.050: repeal. Every court that has considered the issue has determined that such ordinances are unconstitutional.

• Analysis of 9.60.070: repeal. Although this section was acceptable when enacted, it no longer passes constitutional muster. The attempt to limit the prohibition to "commercial or business advertising literature, samples or devices" was added in 1972 after the Santa Clara County Superior Court declared the section unconstitutional. This no longer saves the provision because subsequent case law has recognized that commercial advertising is protected by the First Amendment. Also, the provision is subject to constitutional objections based on vagueness and overbreadth, given that "commercial" advertising may be intertwined with political, religious, or other expression of ideas that is fully protected by the First Amendment.

(7) Section 9.60.080 Exceptions.

• Analysis of 9.60.080: repeal. This section, which was added in 1958, attempts to eliminate First Amendment problems with the regulations by carving out exceptions for newspapers and magazines. The problem is that this effort has created a content-based distinction between types of speech. Such distinctions are constitutionally suspect. Valid "time, place and manner" regulations must be content-neutral.

• If desired, these provisions could be used as a spring board for a content-neutral regulation that would address some of the perceived problems caused by the distribution of advertising and printed matter. This is discussed further below.

(8) Section 9.60.090. Sign prohibiting delivery of certain matter lawful.

• Analysis: this section appears to be constitutional. The courts have long upheld ordinances that authorize a city to enforce "no solicitor" signs on private property. The right to free speech does not guarantee the right to be heard by an unwilling listener. By analogy, a content-neutral ordinance that prohibits distribution of all printed materials, advertising samples and devices to posted property should also be constitutional.

• To make this section consistent with the rest of the chapter, however, the term "printed matter" should be used instead of "literature."
  
• In addition, certain content-neutral regulations could be added to further regulate the manner in which printed matter, advertising samples, and devices are distributed. For example, the section could be revised as follows:

• Note: it is not recommended that the City retain the regulation currently requiring that publishers provide contact information and maintain a list of persons who do not wish to receive their publications. Such regulation has constitutional implications because the courts have recognized a First Amendment right to express one's views anonymously.

(9) Section 9.60.095 Graffiti on private property deemed nuisance.

• Analysis: no change. This section, which was added in 1987, does not appear to raise any constitutional issues.

No fiscal impact to adoption of revised regulations. Some potential savings of the cost of enforcing sections recommended for repeal, but more importantly, savings of future litigation costs.

Standard Council Agenda posting and publication, including availability in the Library and on the City's website.

1. Adopt ordinance repealing Sections 9.60.050, 9.60.70, and 9.60.080, and revising Sections 9.60.020 and 9.60.090.

2. Make other changes to Chapter 9.60.

3. Make no changes to Chapter 9.60.

Alternative #1, adopted proposed ordinance revising Chapter 9.60.

Valerie J. Armento
City Attorney

1. Proposed Ordinance (Revised Chapter 9.60).