Kentucky Advisory Opinions July 06, 1993: OAG 93-053 (July 6, 1993)

OAG 93-053.

You have sent us an excerpt from a county ordinance along with this request:

Please review this Ordinance and give me an Opinion as to whether this violates any constitutional principles or laws in this state.

Thank you for your attention to this matter and I will be expecting to hear from you soon.

The portion of the ordinance with which you are concerned reads as follows:

No political &commercial posters should be posted more than 30 days prior to the date advertised, and should be taken down within 7 days after date advertised.

The ordinance appears to be intended to reduce litter by restricting the posting of temporary political and commercial advertising to the thirty days preceding and seven days following the "date advertised." Your reference to the legislation as a "Litter Ordinance" indicates that the purpose underlying this restriction is the county's interest in reducing unwanted litter. While a county definitely has a valid interest in the cleanliness and aesthetic appeal of its neighborhoods, Metromedia, Inc., v. City of San Diego , 453 U.S. 490, 69 L.Ed.2d 800, 101 S.Ct. 2882 (1981), "one person's litter is another's literature." North Jersey Newspapers Company v . Borough of Kenilworth , 254 N.J.Super. 166, 603 A.2d 124, 126 (1991). That is to say, an anti-litter ordinance enacted in furtherance of a county's police power must be scrutinized for unnecessary restrictions of protected first amendment activity. Schad v. Borough of Mount Ephraim , 452 U.S. 61, 68 L.Ed.2d 671, 101 S.Ct. 2176 (1981).

The first amendment's guarantee of freedom of speech is not absolute; a government may institute reasonable restrictions on the time, place, and manner of the protected speech. Young v. American Mini Theatres, Inc ., 427 U.S. 50, 49 L.Ed.2d 310, 96 S.Ct. 2440 (1976). The constitutional standard for evaluating time, place, and manner restrictions is set forth in Metromedia, Inc., v. City of San Diego , 453 U.S. 490, 69 L.Ed.2d 800, 101 S.Ct. 2882 (1981). The Court there established the following test:

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?

All three parts of the test must be met; that is to say, a restriction that is entirely content-neutral must be narrowly tailored and must leave open ample alternative channels for communication, Frisby v. Schultz , 487 U.S. 474, 101 L.Ed.2d 420, 108 S.Ct. 2495 (1988).

We begin by determining whether the ordinance is content-neutral. Plainly it is not. It applies only to political and commercial advertising, presumably permitting advertising of a charitable or governmental nature. We do not believe that the county could successfully argue that a discarded poster promoting a political candidate is nay more offensive to a community's aesthetic well-being than a discarded poster promoting a church revival. Once it reaches the ground, litter is litter. The ordinance is thus not content-neutral because it discriminates without apparent justification against two specific classifications of advertising.

We next consider whether the ordinance is narrowly tailored to serve a significant governmental interest. A regulation is "narrowly tailored" when it does not burden substantially more speech than is necessary to further the government's legitimate interests. Ward v. Rock Against Racism, 491 U.S. 781, 105 L.Ed.2d 661, 109 S.Ct. 753 (1989). We approach this question mindful that the power of the first amendment is not likely to succumb to a municipal interest in litter control. "Even a content-neutral restriction . . . cannot be justified by trivial gains in convenience or insignificant reductions in litter." Hays County Guardian v. Supple , 969 F.2d 111, 119 (5th Cir, 1992). The U.S. Supreme Court has taken a similarly dim view of ordinances that restrict first amendment activity in the name of litter control:

The motive of the legislation under attack . . . is held by the courts below to be the prevention of littering of the streets . . . . We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press. This constitutional protection does not deprive a city of all power to prevent street littering. Amongst these is the punishment of those who actually throw papers on the streets.

Schneider v. Irvington , 304 U.S. 147, 162, 84 L.Ed. 155, 60 S.Ct. 146 (1939). A county that offers litter control as a basis for justifying first amendment restrictions faces an enormous burden. Once cleared, that burden merely reveals others. It is conceivable for example that the litter problem in Shelby County is attributable entirely to political advertising, with the result that the ordinance burdens commercial advertising unnecessarily. While we have a complete absence of facts to work from and therefore hold open the possibility that a compelling state of facts could exist, we believe that the ordinance is not likely to pass the second part of the Metromedia test.

Nor to we believe that the ordinance leaves open ample alternative channels of communication. The posting of advertisements on utility poles is commonplace because it is cheap. Political candidates with meager financial resources cannot readily turn to other and more expensive forms of communication, such as electronic media, to solicit votes in advance of the ordinance's three-week threshold. Because the "poorly financed causes of little people" are accorded great protection under the first amendment, Martin v. Struthers , 319 U.S. 141, 146, 87 L.Ed. 1313, 63 S.Ct. 862 (1943), we believe that the ordinance would likely be found to fail the third part of the test as well.

Other constitutional implications are apparent fro the face of the ordinance. While we have not been furnished its complete text, we doubt that the ordinance adequately describes the parties whom it is intended to regulate. The use of the passive voice imparts a vagueness not often seen, even among local ordinances. The provision in question says that posted advertising "should be taken down," but it does not say by whom. Nor does it suggest what penalty lurks behind the entreaty "should." We cannot tell whether the ordinance suggests a mere preference that advertisements be removed, or whether it imposes a penalty if they are not.

The ordinance is vague where it should be specific and detailed where it may be general. It progresses form the overspecificity of "telegraph, telephone, railway, or electric light pole, or on any building, vehicle, voting booth, flaging [sic], curb, lawn, walk, step, stone, or sidewalk" in the sentence immediately preceding the one we address here to the vague "the date advertised" to denote the time when the advertising must (or should) be removed. This invites an obvious question as to advertising that does not mention a specific date. Does the ordinance exempt all advertising that does not relate to a particular date? What if the "date advertised" lasts more than one day, such as the racing dates at Keeneland or Churchill Downs" What if the advertisement relates to a particular day such as election day, but does not specifically "advertise" that day?

None of the questions we have raised can be answered by reading the ordinance. Probably they were not considered at the time the ordinance was written, leaving a vagueness that cannot now be remedied. The ordinance does not "convey[] a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices," and thus violates the due process clause. Sasaki v. Commonwealth , Ky., 485 S.W.2d 897, 901 (1972).

For these reasons we do not believe that the ordinance in question would withstand a legal challenge.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General

State Capitol

Frankfort, Kentucky 40601

(502) 564-7600