Are there trashy distinctions in freedom of expression?

As most readers know, I take a broad, lliteral view of the First Amendment. I think freedom of speech means the state cannot stop anyone from saying anything (no matter how offensive), and free expression allows things like flag burning, Nazis marching in Skokie, flying Confederate flags (or I suppose, even Ku Klux Klan demonstrations in black neighborhoods -- regardless of cost to taxpayers), Koran burning, desecration of religious objects, cross burning, publicly displaying nooses, hanging people in effigy, protesting at funerals, Christian proselytizing directed at Muslims, and the usual such antics.

But does that mean lowife ex-convicts and opportunistic thieves have a right to trespass on private property under cover of delivering pizza leaflets? That is what happens routinely here in Ann Arbor, and the city claims that there is no legal way to stop them; there is on the books an anti-littering ordinance which supposedly banned the distribution of handbills on private property, but I was told it was thrown out as unconstitutional and is not enforced. 

FWIW, here's the text of the worthless ordinance:

7:99. - Commercial handbills on private property.

No person shall place any commercial handbill upon any private premises except by handing or transmitting the commercial handbill directly to an occupant of the private premises.

Now, I'd be more sympathetic to the constitutional issue if the handbills were political speech (like, say, these KKK leaflets distributed in a black neighborhood), but this stuff is just plain litter. TRASH. It accumulates and it is annoying to have to clean it up. As a practical matter, I see very little difference between a Domino's Pizza leaflet on my porch and a discarded candy wrapper or empty McDonalds bag. I realize that the former is intended to persuade me of something, but in my mind a pizza leaflet is actually less "persuasive" than an empty McDonalds bag -- for the simple reason that I know the pizza company caused it to be put there deliberately, while McDonalds did not, and I refuse to patronize companies that deliberately place litter my porch.

Am I being an angry crank complaining about one of the minor annoyances of life?

Perhaps, but I just saw a story in the Detroit Free Press (on the front page, no less) about a campaign in Harper Woods to ban the distribution of ad flyers:

Debbie Kien doesn't feel as safe in her Harper Woods neighborhood as she once did.

The fear began in August when someone broke into the Eastwood Drive home that she shares with her husband and two daughters. The couple suspected that the person who burglarized their home was one of the men who regularly walk through their neighborhood delivering flyers from grocery stores.

The Kiens' suspicion was heightened on a March morning when David Kien, a contractor, caught a man rummaging through his van.

"We've been victimized twice," Debbie Kien said.

In response to the Kiens' and others' complaints about handbill distributors littering neighborhoods, peering into windows and being linked to crimes, Harper Woods officials are considering banning the distribution of commercial handbills on public and private property.

The issue is one that has drawn free-speech challenges nationwide.

Free speech is fine, but I think unwanted advertising is littering, and coming into someone's yard or onto their front porch is trespassing.

Anyway, here's how this sort of free speech works in practice:

About 11:15 a.m. March 7, Kien said he saw one of the handbill deliverymen rummaging through his van. Police arrested the man, who was identified as Larry Williams, 44, a homeless man from Detroit. He was distributing circulars from Vega's and Family Foods markets at the time of his arrest.

Williams had a piece of copper in his pocket along with a crack pipe, police said.

"It's that kind of element that I don't want. I prefer not to see them," Kien said. "They're looking for crimes of opportunity."

Harper Woods Police Lt. William Snider said Williams pleaded guilty to two misdemeanors -- larceny from a motor vehicle and possession of narcotic paraphernalia -- and was sentenced March 14 to pay a $395 fine or receive 14 days in jail.

"It's a concern for the community," said Harper Woods Deputy Police Chief Jim Burke. He said the biggest complaint is that the deliverymen are walking across lawns and looking into windows.

Exactly the sort of thing that goes on in Ann Arbor.

I realize this post is a complete waste of time, and nothing can be done, but since I've gotten this far I'm just wondering about something. If it's OK to throw unwanted commercial trash onto porches, then why isn't spam constitutionally protected? Or leaving pork in front of a mosque? (The latter is done in protest, so I guess it should be more proected than spam even if it isn't, but these issues are confusing.)

And if spam is protected, then why not littering? Suppose you're some kind of environmentalist nut who believes in confronting America's wasteful practices by engaging in acts of "guerrila recycling" consisting of throwing used paper in people's yards to dramatize the plight of endangered virgin trees in Canada's Boreal forests? Why wouldn't that kind freedom of expression every bit as protected as flag-burning or desecration of religious objects? Because it would be offensive? No, that can't be the reason, because almost everything is offensive. Time place and manner? No, that can't be it, for why would commercial littering be any more protected than serious acts of political street theater?

I think there might be an unstated double standard where it comes to trash. Some forms of trash are more equal than others.

I suspect the distinction may involve one of those legal "I know it when I see it" deals.

So why am I not seeing it?

posted by Eric on 04.08.11 at 10:07 AM


Actually, entering someone's lawn or front porch is not trespassing. The SCOTUS ruled it was lawful for the police to enter someone's driveway to attach a tracking device since access to the drive was not barred by a fence and gate. I suppose if you posted a prominent no bills, no soliciting sign, you could then make a trespassing complaint.

Fact is, unless you are rich and can afford to wall off your property, the SCOTUS have mostly vacated most trespassing violations in efforts to ratify police incursions.

You best bet would be to name and shame the businesses sending these criminals into the neighborhoods. Hold a picket at the store and really tie the vendor to the criminal so that any crimes committed fall back on the vendor's reputation.

JKB   ·  April 8, 2011 10:23 AM

I think it is impossible to write law that covers every circumstance. Not just difficult, but impossible. So, I'm a fan of the "Hard Law, Soft Law" concept (but not so much the book).

I translate that into "the more nanny state law, the less civilization".

I like Bryan Caplan's sayings that read on this:

The greatest philosophical mistake is to demand proof for the obvious. See Hume.

The second greatest philosophical mistake is to try to prove the obvious. See Descartes.

Switch "legislate" for "proof" and there you go...

Engineer Bob   ·  April 8, 2011 3:49 PM

I thought "time, place, and manner" restrictions were Constitutional. Am I wrong? I do not see a problem with handbills falling under a restriction of the "manner" of delivery.

But IF political handbills are excluded from the restriction, then I'd say it's unConstitutional. That's using content as as defining factor.

Have I misunderstood all these years?

Donna B.   ·  April 8, 2011 3:51 PM

Post is NOT a complete waste of time. We use mostly our back door, which faces a different street from our front door. In winter, when I'm not paying much attention to the yard (okay, most of the year when I'm not paying much attention to the yard, because I'm writing. Yeah, the neighbors hate me) papers accumulate in the front yard, papers that emerge from under the snow as pulpy masses that kill everything in their vicinity. Free papers or littering? We don't want their papers. We tell them so when they call. So, should they be allowed to toss papers in the yard and count it towards their circulation? Isn't that a violation of my private property rights? If it's a matter of free speech, then should taggers be allowed to write on my walls? I mean, it's one or the other. Which one is it?

Sarah   ·  April 8, 2011 3:55 PM


A   ·  April 8, 2011 5:00 PM

Donna, time place and manner is tricky. Protesting at a funeral is OK; protesting in front of a home is apparently not.

Bob is right that it is impossible to write law that consistently covers all these situations.

Sarah, they might be putting the papers there to protest the fact that you don't want them!

Seriously, though, you might try billing them:

Sounds like serious fun.

Eric Scheie   ·  April 8, 2011 6:11 PM

A bank opened up near my house and they keep putting their trash on the windshield of all the cars in the neighborhood.
For some reason my dog likes to take a whiz on the shrubs near their front doors.
I take great delight in taking him there to do what he wants.
Good boy. There's a steak bone in your future. Now if only I could get him to crap there too.

Veeshir   ·  April 9, 2011 9:53 AM

I'm with Eric. It's all littering. The Atlanta Urinal-Constipation drops litter in my drive every Thursday. And there is a special Georgia law allowing it.

I really want to collect it all up, and dump it on the lawn of the publisher. Bet I'd be charged with littering...

Bill Johnson   ·  April 9, 2011 4:46 PM

Bill, don't dump in on the lawn. Let them sit on your property till they are somewhat moldy and smelly (if you could get Veehir's dog to contribute, that would be a plus).

Then take them into the OFFICES and politely return them.

Kathy Kinsley   ·  April 9, 2011 6:51 PM

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