Leaflets and Handbills

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In Lovell v. City of Griffin,1 the Supreme Court struck down a permit system applying to the distribution of circulars, handbills, or literature of any kind. The First Amendment, the Court said, “necessarily embraces pamphlets and leaflets,” which “have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.” 2 State courts, responding to what appeared to be a hint in Lovell that prevention of littering and other interests might be sufficient to sustain a flat ban on literature distribution,3 upheld total prohibitions and were reversed in Schneider v. State.4 The Court held that “[m]ere legislative preferences” for keeping “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.” 5 In Talley v. California,6 the Court struck down an ordinance that banned all handbills that did not carry the name and address of the author, printer, and sponsor. The Court noted that “[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind,” allowing criticism of “oppressive practices and laws either anonymously or not at all.” 7 Imposing identification requirements “might deter perfectly peaceful discussions of public matters of importance.” 8 Responding to the city’s defense that the ordinance was aimed at providing a means to identify those responsible for fraud, false advertising, and the like, the Court noted that “the ordinance is in no manner so limited,” saying the Court would not, therefore, “pass on the validity of an ordinance limited to these or any other supposed evils.” 9

Talley's anonymity rationale was strengthened in McIntyre v. Ohio Elections Comm’n,10 invalidating Ohio’s prohibition on the distribution of anonymous campaign literature. There is a “respected tradition of anonymity in the advocacy of political causes,” the Court noted, and neither of the interests asserted by Ohio justified the limitation. The Court held that the state’s interest in informing the electorate was “plainly insufficient,” and, although the more weighty interest in preventing fraud in the electoral process might be accomplished by a direct prohibition, it could not be accomplished indirectly by an indiscriminate ban on a whole category of speech.11 Ohio could not apply the prohibition, therefore, to punish anonymous distribution of pamphlets opposing a referendum on school taxes.12

The handbilling cases were distinguished in City Council v. Taxpayers for Vincent,13 in which the Court held that a city may prohibit altogether the use of utility poles for posting of signs. Although a city’s concern over visual blight could be addressed by an anti-littering ordinance not restricting the expressive activity of distributing handbills, in the case of utility pole signs “it is the medium of expression itself” that creates the visual blight. Hence, the city’s prohibition, unlike a prohibition on distributing handbills, was narrowly tailored to curtail no more speech than necessary to accomplish the city’s legitimate purpose.14 Ten years later, however, the Court unanimously invalidated a town’s broad ban on residential signs that permitted only residential identification signs, “for sale” signs, and signs warning of safety hazards.15 Prohibiting homeowners from displaying political, religious, or personal messages on their own property entirely foreclosed “a venerable means of communication that is unique and important,” and that is “an unusually cheap form of communication” without viable alternatives for many residents.16 The ban was thus reminiscent of total bans on leafleting, distribution of literature, and door-to-door solicitation that the Court had struck down in the 1930s and 1940s. The prohibition in Vincent was distinguished as not removing a “uniquely valuable or important mode of communication,” and as not impairing citizens’ ability to communicate.17

1: 303 U.S. 444 (1938).
2: 303 U.S. at 452.
3: 303 U.S. at 451.
4: Schneider v. Town of Irvington, 308 U.S. 147, 161, 162 (1939). The Court noted that the right to distribute leaflets was subject to certain obvious regulations, id. at 160, and called for a balancing, with the weight inclined to the First Amendment rights. See also Jamison v. Texas, 318 U.S. 413 (1943).
5: 308 U.S. at 161, 162.
6: 362 U.S. 60 (1960).
7: Id. at 64.
8: Id. at 65.
9: Id. at 64. In Zwickler v. Koota, 389 U.S. 241 (1967), the Court directed a lower court to consider the constitutionality of a statute which made it a criminal offense to publish or distribute election literature without identification of the name and address of the printer and of the persons sponsoring the literature. The lower court voided the law, but changed circumstances on a new appeal caused the Court to dismiss. Golden v. Zwickler, 394 U.S. 103 (1969).
10: 514 U.S. 334 (1995).
11: Id. at 348–49.
12: In Buckley v. Am. Const. L. Found., 525 U.S. 182 (1999), the Court struck down a Colorado statute requiring initiative-petition circulators to wear identification badges. It found that “the restraint on speech in this case is more severe than was the restraint in McIntyre” because “[p]etition circulation is a less fleeting encounter, for the circulator must endeavor to persuade electors to sign the petition. . . . [T]he badge requirement compels personal name identification at the precise moment when the circulator’s interest in anonymity is greatest.” Id. at 199. In Watchtower Bible & Tract Soc’y v. Village of Stratton, 536 U.S. 150, 166 (2002), concern for the right to anonymity was one reason that the Court struck down an ordinance that made it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit.
13: 466 U.S. 789 (1984).
14: Justice William Brennan argued in dissent that adequate alternative forms of communication were not readily available because handbilling or other person-to-person methods would be substantially more expensive, and that the regulation for the sake of aesthetics was not adequately justified.
15: City of Ladue v. Gilleo, 512 U.S. 43 (1994).
16: Id. at 54, 57.
17: Id. at 54. The city’s legitimate interest in reducing visual clutter could be addressed by “more temperate” measures, the Court suggested. Id. at 58.