in the united states district court for the western...

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KATHLEEN A. RAMSEY and ALBERT A. BRUNN,

Plaintiffs, v. CITY OF PITTSBURGH,

Pennsylvania. Defendant. ______________________________________/

CIVIL ACTION NO. 2:10-CV-1305-DSC

District Judge David Stewart Cercone

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR

TEMPORARY RESTRAINING ORDER, OR, IN THE ALTERNATIVE,

MOTION FOR PRELIMINARY INJUNCTION

Case 2:10-cv-01305-DSC Document 5-2 Filed 10/06/10 of 28

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION ...........................................................................................................................1 STATEMENT OF ISSUES .............................................................................................................1 STATEMENT OF FACTS ..............................................................................................................1 CHALLENGED ORDINANCE ......................................................................................................2

ARGUMENT ...................................................................................................................................3 I. PLAINTIFFS SATISFY THE STANDARD FOR INJUNCTIVE RELIEF ........................................................................................................3 A. Plaintiffs May Bring This Challenge On Their Behalf And On Behalf Of Others ........................................................................................4 B. Plaintiffs Are Likely To Succeed On The Merits Of Their Claim ...........................4 1. Defendant Bears The Burden Of Demonstrating The Constitutionality Of Section 601.02 ..................................................................4 2. Plaintiffs’ Leafleting Enjoys Broad First Amendment Protection ......................................................................................5 3. Section 601.02 Fails As A Valid Time, Place, And Manner Restriction .....................................................................................6 a. Section 601.02 Is Not Narrowly Tailored To A Significant Governmental Interest ...............................................................6 b. Section 601.02 Does Not Leave Open Ample Alternative Channels of Communication...................................................12 4. Section 601.02 Is Void For Vagueness ............................................................14 5. Section 601.02 Is Overbroad............................................................................17 C. Plaintiffs Will Suffer Irreparable Harm Unless The Injunction Issues ...............18 D. An Injunction Will Not Harm Defendant ...........................................................18 E. An Injunction Will Have No Negative Impact On The Public Interest ..............19


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II. THIS COURT SHOULD NOT IMPOSE A BOND ON PLAINTIFFS ...........................19 CONCLUSION ..............................................................................................................................20 CERTIFICATE OF SERVICE ......................................................................................................21

INDEX OF EXHIBITS EXHIBIT A, DECLARATION OF KATHLEEN A. RAMSEY EXHIBIT B, DECLARATION OF ALBERT A. BRUNN EXHIBIT C, PITTSBURGH ORDINANCE § 601.02 EXHIBIT D, LEGISLATIVE TEXT FILE, NO. 2008-0624, PITTSBURGH CODE


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TABLE OF AUTHORITIES

CASES PAGE(S)

Ad World, Inc. v. Twp. of Doylestown, 672 F.2d 1136 (3d Cir. 1982)............................................................................................ 6-7, 12

Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153 (3d Cir. 1999)........................................................................................................3

Apollo Technologies Corp. v. Centrosphere Indus. Corp., 805 F. Supp. 1157 (D.N.J. 1992) ................................................................................................3

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ....................................................................................................................4

Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009).................................................................................................... 5-6

Brown v. City of Pittsburgh, 543 F. Supp. 2d 448 (W.D. Pa. 2008) .................................................................................14, 19

City of Houston v. Hill, 482 U.S. 451 (1987) ..................................................................................................................15

Colautti v. Franklin, 439 U.S. 379 (1979) ..................................................................................................................15

Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n, 447 U.S. 530 (1980) ....................................................................................................................6

Dombrowski v. Pfister, 380 U.S. 479 (1965) ..................................................................................................................18

Edwards v. City of Coeur d’Alene, 262 F.3d 856 (9th Cir. 2001) ....................................................................................................13

Elliot v. Kiesewetter, 98 F.3d 47 (3d Cir. 1996)..........................................................................................................20

Elrod v. Burns, 427 U.S. 347 (1976) ..................................................................................................................18

G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) ....................................................................................................19


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Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939) ..................................................................................................................16

Hill v. Colorado, 530 U.S. 703 (2000) ....................................................................................................................5

Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640 (1981) ..................................................................................................................13

Horina v. City of Granite City, 538 F.3d 624 (7th Cir. 2008) ................................................................................................8, 13

Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir. 1989)......................................................................................................19

Interactive Media Entm’t & Gaming Ass’n v. Att’y Gen. of the U.S., 580 F.3d 113 (3d Cir. 2009)......................................................................................................14

Jews for Jesus, Inc. v. Massachusetts Bay Transp. Auth.,

984 F.2d 1319 (1st Cir. 1993) ...................................................................................................10

Jobe v. City of Catlettsburg,

409 F.3d 261 (6th Cir. 2005) ......................................................................................................7

Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) .......................................................................................... 7, 9-12

Kolender v. Lawson, 461 U.S. 352 (1983) ............................................................................................................ 14-15

Krantz v. City of Fort Smith, 160 F.3d 1214 (8th Cir. 1998) .................................................................................. 8, 10-12. 17

Lamont v. Postmaster Gen.,

381 U.S. 301 (1965) ..................................................................................................................11

Lovell v. City of Griffin, 303 U.S. 444 (1938) ....................................................................................................................5

Martin v. City of Struthers, 319 U.S. 141 (1943) ....................................................................................................................5

McTernan v. City of York, 564 F.3d 636 (3d Cir. 2009)........................................................................................................6


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Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) ..................................................................................................................17

Miller v. Mitchell, 598 F.3d 139 (3d Cir. 2010)........................................................................................................3

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ....................................................................................................................5 NAACP v. Button, 371 U.S. 415 (1963) ..................................................................................................................18

Pa. Alliance for Jobs & Energy v. Council of Munhall, 743 F.2d 182 (3d Cir. 1984)......................................................................................................12

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1 (1986). .....................................................................................................................19

Phillips v. Borough of Keyport, 107 F.3d 164 (3d Cir. 1997)........................................................................................................5

Project 80’s, Inc. v. City of Pocatello,

942 F.2d 635 (9th Cir. 1991) ....................................................................................................11

Riel v. City of Bradford, 485 F.3d 736 (3d Cir. 2007)......................................................................................................15

R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427 (6th Cir. 2005) ......................................................................................................4

Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001)........................................................................................................4

Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (1997) ....................................................................................................................5

Schneider v. New Jersey,

308 U.S. 147 (1939) ..................................................................................................................10

Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) ............................................................................................................ 16-17

Talley v. California,

362 U.S. 60 (1960) ....................................................................................................................14


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Temple Univ. v. White, 941 F.2d 201 (3d Cir. 1991)......................................................................................................19

Thomas v. Collins, 323 U.S. 516 (1945) ....................................................................................................................5

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) ....................................................................................................................7

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ....................................................................................................................4 United States v. Williams, 553 U.S. 285 (2008) ..................................................................................................................17

Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton,

536 U.S. 150 (2002) ..................................................................................................................14

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ....................................................................................................................6 OTHER

Fed. R. Civ. P. 65 ...................................................................................................................1, 3, 19

Pittsburgh Ordinance Section 601.02 ................................................................................ 1, passim

Pittsburgh Ordinance Section 601.11 ..............................................................................................9

Pittsburgh Ordinance Section 601.14 ..............................................................................................3


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INTRODUCTION

Plaintiffs are pro-life advocates who seek to distribute pro-life literature on public and

private property in the City of Pittsburgh. To educate the public on pro-life matters, especially as

they relate to the elections on November 2, 2010, plaintiffs wish to hand their literature to

individuals and to place it on unoccupied parked cars. Pittsburgh Ordinance § 601.02

unconstitutionally restricts plaintiffs’ distribution of literature within the City of Pittsburgh, and

plaintiffs are subject to financial penalties, and court costs, for violating Section 601.02.

Plaintiffs seek a temporary restraining order and preliminary injunction pursuant to

Federal Rule of Civil Procedure 65, declaring Section 601.02 unconstitutional on its face and

enjoining defendant City of Pittsburgh from enforcing Section 601.02 against them and others

not before this court to allow them to distribute literature without fear of being penalized by

defendant.

STATEMENT OF ISSUES

I. Whether this court should enter a temporary restraining order and preliminary

injunction to protect plaintiffs’ constitutional rights, and those of others not before this court,

because (1) plaintiffs are likely to succeed on the merits, (2) they would suffer irreparable harm

without the injunction, (3) an injunction would not cause substantial harm to defendant, and (4)

an injunction would benefit the public’s interest. Answer: Yes.

II. Whether this court should exercise its discretion and not require plaintiffs to post

a bond in support of the grant of an injunction. Answer: Yes.

STATEMENT OF FACTS

Plaintiffs are pro-life advocates. They have distributed literature on public and private

property within the City of Pittsburgh as part of their pro-life advocacy. They want to continue


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to do so, including by handing out literature and by placing it on unoccupied parked vehicles

within the City of Pittsburgh, especially to educate the public about issues relevant to the election

on November 2, 2010, without fear of being charged with violating Section 601.02 and without

fear of having to pay any financial penalties for violating Section 601.02. (Ex. A, Ramsey Decl.

at ¶¶ 1-2; Ex. B, Brunn Decl. at ¶¶ 1-2.)

Section 601.02 does not allow plaintiffs to reasonably distribute literature within the City

of Pittsburgh. Plaintiffs cannot distribute literature directly to people without fear of being

charged with a violation of Section 601.02(a)-(b) for causing litter, and they cannot place

literature on any unoccupied parked vehicle without fear of being charged with a violation of

Section 601.02(c) unless they receive permission from the owner (not a driver or occupant), thus

preventing them from distributing their literature on any unoccupied parked vehicles in the City.

CHALLENGED ORDINANCE

Plaintiffs bring this facial challenge against Section 601.02, which provides as follows:

(a) No person shall intentionally, recklessly or negligently distribute any handbill, advertisement, flyer, announcement or any sample merchandise on public and private property so as to cause litter or unreasonably interfere with pedestrians or traffic. (b) No person shall distribute any unsolicited handbill, newspaper, advertisement, flyer, announcement or sample merchandise on private property, including walkways and lawns, so as to cause litter. Unsolicited materials must be securely deposited on porches and stoops. (c) No person shall deposit in, fasten to, or place on or cause to be deposited in, fastened to, or placed on any motor vehicle parked or standing upon or along any public street or public parking lot within the City, any unsolicited handbills, advertisements, cards, leaflets, signs, posters, or notices without obtaining prior consent from the owner of the vehicle.

(1) Nothing contained in this subsection (b) shall prohibit the attachment to a motor vehicle of a citation issued or published by or on behalf of the City or any other material authorized by law to be placed on a motor vehicle by an authorized official.


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(2) The provisions of this subsection (b) shall not be deemed to prohibit the distribution of any handbill, advertisement, card, leaflet, sign, poster, or notice by hand-delivery to the owner or other occupant of any vehicle who is willing to accept the handbill, advertisement, card, leaflet, sign, poster, or notice.

(Ex. C.)

The penalties for violating Section 601.02 include a minimum of a $15.00 fine, plus court

costs, for the first violation and up to a $500.00 fine, plus court costs, for each additional

violation, pursuant to Pittsburgh Ordinance § 601.14(a).

ARGUMENT

I. PLAINTIFFS SATISFY THE STANDARD FOR INJUNCTIVE RELIEF

This court may properly exercise its discretion and grant plaintiffs injunctive relief under

Fed. R. Civ. P. 65. In exercising that discretion, this court considers four factors: (1) plaintiffs’

likelihood of success on the merits; (2) whether plaintiffs will suffer irreparable harm if the

injunction is denied; (3) whether granting the injunction will result in even greater harm to

defendant; and (4) the impact of the injunction on the public interest. E.g. Miller v. Mitchell, 598

F.3d 139, 147 (3d Cir. 2010).

Although this court should balance these four factors, Allegheny Energy, Inc. v. DQE,

Inc., 171 F.3d 153, 158 (3d Cir. 1999), the United States Court of Appeals for the Third Circuit

has placed particular weight on the probability of irreparable harm and the likelihood of success

on the merits, stating: “‘We cannot sustain a preliminary injunction ordered by the district court

where either or both of these prerequisites are absent.’” Apollo Technologies Corp. v.

Centrosphere Indus. Corp., 805 F. Supp. 1157, 1191 (D.N.J. 1992) (citations omitted). A

balance of the factors clearly weighs in favor of granting plaintiffs the requested injunction.


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A. Plaintiffs May Bring This Challenge On Their Behalf And

On Behalf Of Others

The Supreme Court stated many years ago, “[i]t has long been recognized that the First

Amendment needs breathing space and that statutes attempting to restrict or burden the exercise

of First Amendment rights must be narrowly drawn and represent a considered legislative

judgment that a particular mode of expression has to give way to other compelling needs of

society.” Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973). As a result, the Court altered its

traditional standing rules to allow, in the First Amendment context, “‘attacks on overly broad

statutes with no requirement that the person making the attack demonstrate that his own conduct

could not be regulated by a statute drawn with the requisite narrow specificity.’” Id. at 612.

“Litigants, therefore, are permitted to challenge a statute not because their own rights of free

expression are violated, but because of a judicial prediction or assumption that the statute’s very

existence may cause others not before the court to refrain from constitutionally protected speech

or expression.” Id.; see generally Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir.

2001); see also R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 438 (6th Cir. 2005)

(explaining that a person may bring a facial challenge and assert third party standing, without

first being subject to the law, when the First Amendment challenge brought involves overbreadth

and vagueness). Thus, plaintiffs may bring this facial challenge.

B. Plaintiffs Are Likely To Succeed On The Merits Of Their Claims

1. Defendant Bears The Burden Of Demonstrating The

Constitutionality Of Section 601.02

Contrary to most legal disputes, in First Amendment cases the government carries the

burden of establishing the constitutionality of its actions. United States v. Playboy Entm’t Grp.,

Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, the Government bears


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the burden of proving the constitutionality of its actions.”) (citations omitted); Brown v. City of

Pittsburgh, 586 F.3d 263, 278 (3d Cir. 2009). Once plaintiffs have shown that the law burdens

their freedom of expression, the burden shifts to the government to justify the restraint under the

relevant First Amendment standard. Phillips v. Borough of Keyport, 107 F.3d 164, 172–73 (3d

Cir. 1997) (“when a legislative body acts to regulate speech, it has the burden when challenged”

of satisfying the relevant First Amendment standard).

2. Plaintiffs’ Leafleting Enjoys Broad First Amendment Protection

Leafleting is a highly venerated and inexpensive method of communication used by

Americans throughout history to spread political, religious, and commercial messages. Lovell v.

City of Griffin, 303 U.S. 444, 452 (1938) (noting that “pamphlets and leaflets . . . have been

historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our

own history abundantly attest”); Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943) (“The hand

distribution of religious tracts is an age-old form of missionary evangelism—as old as the history

of printing presses.”). The freedom to distribute information “is so clearly vital to the

preservation of a free society that, putting aside reasonable police and health regulations of time

and manner of distribution, it must be fully preserved.” Martin v. City of Struthers, 319 U.S.

141, 146–47 (1943) (emphasis added).

Leafleting enjoys broad constitutional protections because the right to attempt to argue,

advocate, and alter another’s opinion implicates the very foundations upon which the First

Amendment was adopted. See Thomas v. Collins, 323 U.S. 516, 537 (1945). The First

Amendment’s protection of leafleting is at its zenith on public streets and sidewalks, prototypical

examples of traditional public forums. See, e.g., Schenck v. Pro-Choice Network of W. N.Y., 519

U.S. 357, 377 (1997); see also Hill v. Colorado, 530 U.S. 703, 714 (2000) (recognizing that pro-


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life petitioners’ “leafleting, sign displays, and oral communication are protected by the First

Amendment”).

3. Section 601.02 Fails As A Valid Time, Place, And Manner Restriction

Permissible restrictions on expression in a traditional public forum must be content-

neutral, narrowly tailored to serve a significant governmental interest, and leave open ample

alternative channels for the communication of the message. McTernan v. City of York, 564 F.3d

636, 645 (3d Cir. 2009) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

Defendant has the burden to establish each element. See Brown, 586 F.3d at 278. Plaintiffs

concede that the ordinance is content-neutral on its face.

a. Section 601.02 Is Not Narrowly Tailored To A Significant

Governmental Interest

Burdens on free speech must be justified by a significant government interest. Consol.

Edison Co. of N.Y. v. Pub. Serv. Comm’n, 447 U.S. 530, 535 (1980). According to the

Legislation Text published by the City of Pittsburgh, one of the reasons why the ordinance was

added to the code was that the City “determined that unsolicited materials left on motor vehicles

[had] led to an accumulation of litter and visual blight.” (Ex. D, Legislation Text File No. 2008-

0624, Pittsburgh Code.) Therefore, an asserted government interest for Section 601.02 is the

alleviation of litter.

Yet, to be considered “narrowly tailored,” Section 601.02 must not “burden substantially

more speech than is necessary to further” the claimed interest to curtail litter. Ward v. Rock

Against Racism, 491 U.S. 781, 798-99 (1989). Defendant must be able to point to evidence

showing that the means adopted are narrowly tailored to combat the claimed substantial

government interest. See Ad World, Inc. v. Twp. of Doylestown, 672 F.2d 1136, 1140 (3d Cir.

1982) (“[I]n matters impinging on the first amendment we may not permit undifferentiated fears


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to excuse the suppression of first amendment rights.” (citing Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 508 (1969) (“undifferentiated fear or apprehension of disturbance is not

enough to overcome the right to freedom of expression”))).

Ordinances similar to Section 601.02(c) that ban the placement of literature on

unoccupied parked cars have been struck down by three out of the four circuit courts to consider

them.1/ Recently, in Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009), the United

States Court of Appeals for the Ninth Circuit enjoined the enforcement of a vehicle leafleting

ban similar to Section 601.02(c). There, as here, the city’s asserted justification for the law was

an interest in “prohibiting litter and visual blight.” Id. at 1201. Applying an evidentiary

requirement, the circuit court held that the city must “show some nexus between leaflets placed

on vehicles and a resulting substantial increase in litter on the streets before we could find that

the City’s asserted interest in preventing littering on the street justifies a prohibition on placing

leaflets on windshields.” Id. at 1202 (emphasis added). The circuit court stated further:

[P]reventing a marginal quantity of litter is not a sufficiently significant interest to

restrict leafleting. Discarded paper, coffee cups and food wrappers can also add to litter, but we remain free to carry beverages and candy bars on public streets, indicating that municipalities do not usually endeavor to eliminate all possibilities of litter. So the City must show not only that vehicle leafleting can create litter,

but that it creates an abundance of litter significantly beyond the amount the City

already manages to clean up.

Id. at 1203 (emphasis added).

1/ The United States Court of Appeals for the Sixth Circuit is the outlier circuit court in considering these types of ordinances, having upheld a ban on placing leaflets on unoccupied parked cars. Jobe v. City of Catlettsburg, 409 F.3d 261 (6th Cir. 2005). The Third Circuit, in Ad

World, Inc. v. Township of Doylestown, 672 F.2d 1136 (3d Cir. 1982), determined that an ordinance, which made it unlawful to distribute advertising materials at a residence without obtaining the consent of the person occupying the residence, violated the First and Fourteenth Amendments to the United States Constitution.


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Also, in Horina v. City of Granite City, 538 F.3d 624 (7th Cir. 2008), the United States

Court of Appeals for the Seventh Circuit affirmed the ruling of the district court, holding

unconstitutional a vehicle leafleting ban similar to Section 601.02(c). There, the city’s asserted

interest in the ban was also “preventing . . . ‘intrusion, trespass, harassment, and litter.’” Id. at

628. The circuit court, in affirming the unconstitutionality of the ordinance, rejected the city’s

argument that it did not need to present evidence to show that the ordinance was “actually

serv[ing] a government interest.” Id. at 634. The circuit court stated that the city could not “rely

on mere common sense to show that [the ordinance] is needed to combat those ills,” but rather

“‘the government has the burden of showing that there is evidence supporting its proffered

justification’ for its speech restriction when asserting that the restriction survives the time, place,

and manner analysis.” Id. at 633 (citations omitted).

The Seventh Circuit also held that the ordinance was not narrowly tailored. Id. at 634.

“A restriction on hand-billing is narrowly tailored if it ‘promotes a substantial government

interest that would be achieved less effectively absent the [restriction].’” Id. (citations omitted).

The city already proscribed “in some form litter, intrusion, trespass, [and] harassment” in already

existing laws, leading the court to believe “that the City can currently combat those problems

very effectively without resorting to a broad prohibition on handbilling.” Id. at 635.

Moreover, in Krantz v. City of Fort Smith, 160 F.3d 1214 (8th Cir. 1998), the United

States Court of Appeals for the Eighth Circuit held unconstitutional an ordinance similar to

Section 601.02(c) that made it a misdemeanor “for any person to place a handbill or

advertisement on any other person’s vehicle . . . unless an occupant . . . is willing to accept the

handbill.” Id. at 1216. The circuit court stated that “those individuals who do not want handbills


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placed on their vehicles can quite easily and effectively provide notice, for example, by placing a

sign on the dashboard.” Id. at 1220.

As illustrated by these three circuit court decisions, the prohibition in Section 601.02(c)

regarding the placement of literature on parked cars is unconstitutional because it suppresses

more speech than is necessary to serve any governmental interest. The evidence does not

support the conclusion that the placement of leaflets on parked cars causes a substantial amount

of litter as to justify restricting this method of speech. When plaintiffs have placed literature on

unoccupied parked cars, they have not caused litter, let alone an abundant amount of litter. (Ex.

A, Ramsey Decl. at ¶ 2; Ex. B, Brunn Decl. at ¶ 1.) Indeed, after securely placing leaflets on

hundreds of parked cars, plaintiff Ramsey has later seen only a few leaflets on the ground,

presumably caused by people throwing the literature there and she has picked up that litter. (Ex.

A, Ramsey Decl. at ¶ 2.) Defendant cannot demonstrate that plaintiffs and others who place

political and educational literature on parked cars cause substantially more litter than that which

the City already manages to clean up. See Klein, 584 F.3d at 1203 (explaining that discarded

coffee cups can add to litter but people remain free to carry beverages, “indicating that

municipalities do not usually endeavor to eliminate all possibilities of litter. So the City must

show not only that vehicle leafleting can create litter, but that it creates an abundance of litter

significantly beyond the amount the City already manages to clean up.”).

Section 601.02(c) is based on the assumption that many recipients of literature placed

under the windshield wipers or in the door jambs of their cars will throw the literature on the

ground, rather than dispose of it properly. If defendant is concerned with stopping litter, it

should enforce its anti-litter laws rather than resorting to a broad prohibition on placing leaflets

on unoccupied parked cars. See Pittsburgh Ordinance § 601.11 (code section prohibiting


10

“littering and dumping” and stating in part that “[n]o person shall cause any waste paper … upon

any street, sidewalk or other public place . . . or the private premises of another. . . .”).

As the Supreme Court has stated in striking down a ban on leafleting as a way to stop

litter, “[t]here are obvious methods of preventing littering. Amongst these is the punishment of

those who actually throw papers on the street.” Schneider v. New Jersey, 308 U.S. 147, 162

(1939); see also Klein, 584 F.3d at 1204 (“The mere fact that an unwilling recipient must take

the unsolicited leaflet from her windshield and place it in the garbage cannot justify an across-

the-board restriction” on the placement of literature on unoccupied parked vehicles); Krantz, 160

F.3d at 1221 (explaining that the “inconvenience of having to dispose of unwanted paper ‘is an

acceptable burden, at least as far as the Constitution is concerned’”); Jews for Jesus, Inc. v.

Massachusetts Bay Transp. Auth., 984 F.2d 1319, 1324 (1st Cir. 1993) (“littering is the fault of

the litterbug, not the leafletter. The normally appropriate response to problems caused by litter,

therefore, is to punish the litterbug.”).

Section 601.02(c) requires pamphleteers to obtain the permission of the owner of each

vehicle before they may lawfully place their literature on those vehicles. An occupant or driver

of a car, who is not its owner, may not give them permission to place literature on the parked car.

Thus, unless the owner is present, pamphleteers are not allowed to place their literature on the

parked car. As a result, unless an owner happens to be present, all unoccupied parked cars in the

City of Pittsburgh are off-limits for pamphleteers, including plaintiffs.2/

2/ Because only the owner can give permission, does that mean a pamphleteer must

obtain proof to ensure he got permission from the owner and not someone claiming to be the owner to avoid being cited for violating Section 601.02(c)? If so, what must the pamphleteer do, check the person’s driver license and compare it with the vehicle registration? On the face of Section 601.02(c), a pamphleteer is not sure, thus further chilling his free speech rights.


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Section 601.02(c) overlooks the fact that there are people (whether the owner, driver, or

occupant) who would like to receive leaflets on their unoccupied parked vehicles to read after

they return to their vehicle, especially during an election year. By placing the ban on leafleting

unoccupied parked cars, defendant is preventing those people from receiving information.

Indeed, Section 601.02(c) prevents every driver and occupant who is not the owner from

receiving such information, even if they want it. Only the owner can give permission. Section

601.02(c), then, places the burden on the owner to inform pamphleteers that he would like to

receive their information. The only way the owner is to accomplish that is to be present when

the pamphleteer is there (a matter of happenstance) or the owner must place a sign on his

dashboard to give permission. Section 601.02(c), by its own terms, though, would require the

owner, if he wants to get the literature, to draft the sign in a way to assure the pamphleteer that

he is, in fact, the owner, and can give the permission to the pamphleteer; otherwise, without that

assurance, no pamphleteer would risk being fined under Section 601.02(c).

Placing the burden on recipients of information to state affirmatively that they want to

receive information is unconstitutional. See Lamont v. Postmaster Gen., 381 U.S. 301, 307

(1965) (striking down a law as unconstitutional since it imposed on the addressee an affirmative

obligation to request in writing that certain mail be delivered and explaining “[t]his amounts in

our judgment to an unconstitutional abridgment of the addressee’s First Amendment rights.”);

see also Project 80’s, Inc. v. City of Pocatello, 942 F.2d 635, 638-39 (9th Cir. 1991) (striking

down ordinances that required residents to post “Solicitors Welcome” signs and stating “[t]he

government’s imposition of affirmative obligations on the residents’ first amendment rights to

receive speech is not permissible.”).


12

Persons concerned about receiving unwanted literature on their unoccupied parked cars

can simply “opt-out” by placing signs on their dashboards (a “No Soliciting” sign as some

people place on the front door of their homes). See Klein, 584 F.3d at 1205 (explaining that

people can “opt-out” of receiving literature on their parked vehicles by posting “No Soliciting”

signs); Krantz, 160 F.3d at 1221 (same).

In sum, Section 601.02(c) is not narrowly tailored; it substantially burdens more speech

than is necessary to further the City’s interest in preventing litter. Any concern about preventing

litter should be directed to the actual litterer and not to plaintiffs or other pamphleteers who are

attempting to advocate their views to the public.3/

b. Section 601.02 Does Not Leave Open Ample

Alternative Channels of Communication

Even assuming that the prevention of litter is a legitimate government interest, Section

601.02 is invalid as it is not precisely drawn to serve that interest. Pa. Alliance for Jobs &

Energy v. Council of Munhall, 743 F.2d 182, 187 (3d Cir. 1984) (“Even where a substantial state

interest is articulated, a regulation that only peripherally protects that interest or that is not

directly connected to the evil it is designed to prevent can hardly be justified as a necessary

restriction of First Amendment rights. Accordingly, regulations . . . must be precisely drawn to

serve the interests they are designed to further.”).

3/ Section 601.02 on a whole is also not saved by any claim that it is needed to protect the aesthetics of the City. Beyond the need for the City to show a factual basis for concluding a cause-and-effect relationship between the placement of literature on parked cars and litter that impacts the aesthetical well-being of the City, as discussed in the text above, Section 601.02 curtails substantially more speech than is necessary to accomplish such a purpose and is unconstitutional. See Krantz, 160 F.3d at 1221-22. Moreover, Section 601.02 is not saved by any claim that it is needed to prevent or reduce burglary and vandalism at residences in the City. In Ad World, the Third Circuit rejected a municipality’s justification for an ordinance that made it unlawful to distribute advertising materials at a residence without consent since the municipality provided no evidence of a strong connection between the accumulation of papers and the incidence of crime. Ad World, 672 F.2d at 1140-41.


13

“The First Amendment protects the right of every citizen to ‘reach the minds of willing

listeners and to do so there must be opportunity to win their attention.’” Heffron v. Int’l Soc’y

for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981). Therefore, “[i]f an ordinance

effectively prevents a speaker from reaching his intended audience, it fails to leave open ample

alternative means of communication.” Edwards v. City of Coeur d’Alene, 262 F.3d 856, 866 (9th

Cir. 2001).

Section 601.02(c) prohibits all leafleting on unoccupied parked vehicles unless the owner

gives express permission. This significantly reduces the channels of communication available to

plaintiffs. Plaintiffs are now forced to distribute literature by hand to passersby, assuming they

can do so in a manner that does not cause litter and does not violate Sections 601.02(a) and (b),

as discussed in the next part of this memorandum, or send out their literature by mail.

In Horina, the Seventh Circuit stated that an ordinance, similar to Section 601.02(c),

which also prevented placing leaflets on unoccupied parked cars, failed to leave open alternative

methods of communication. 538 F.3d at 635. The circuit court stated that “[f]orcing an

individual to limit handbilling activities to person-to-person solicitation is extremely time

consuming and burdensome, particularly when the individual intends to convey a message to

people who park their automobiles in a certain area of the city or who live in a certain

neighborhood.” Id. at 636. The circuit court wrote: “[W]e cannot say that an alternative

channel of communication is realistic when it requires a speaker significantly—and perhaps

prohibitively—more time to reach the same audience.” Id. (citations omitted). Moreover, the

Seventh Circuit concluded that the fact an individual could mail the literature is no alternative to

handbilling. Id. The court explained that the mail system is both an expensive and unwieldy


14

method for individuals to distribute handbills and a totally ineffective means to distribute

literature to those who have parked their vehicles nearby. Id. The same reasoning applies here.

In addition, plaintiffs and other pamphleteers who are required to ask permission from the

owners of vehicles to place literature on them are forced to lose their anonymity to receive

permission to spread their message. As such, Section 601.02 unconstitutionally burdens

anonymous speech. As the Supreme Court has explained, requiring pamphleteers to forgo

anonymity tends “to restrict freedom to distribute information and thereby freedom of

information.” Talley v. California, 362 U.S. 60, 64 (1960); see also Watchtower Bible & Tract

Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 166-69 (2002) (striking down as

unconstitutional an ordinance that impaired anonymous pamphlet distribution).

Accordingly, Section 601.02 does not leave plaintiffs and other pamphleteers with

reasonable or ample alternatives to distribute literature.

4. Section 601.02 Is Void For Vagueness

To comply with due process, laws must clearly delineate the conduct proscribed so as to

provide a person of ordinary intelligence fair notice of what is prohibited. Interactive Media

Entm’t & Gaming Ass’n v. Att’y Gen. of the U.S., 580 F.3d 113, 116 (3d Cir. 2009). Ordinances

that are insufficiently clear and precise in their terms are void for vagueness so as to avoid: (1)

punishing people for behavior that they could not have known was illegal; (2) subjective

enforcement of the laws based on “arbitrary and discriminatory enforcement” by government

officers; and (3) any chilling effect on the exercise of First Amendment freedoms. Brown v. City

of Pittsburgh, 543 F. Supp. 2d 448, 480 (W.D. Pa. 2008). The Supreme Court has stated that

“arbitrary application is ‘inherently inconsistent with a valid time, place, and manner regulation


15

because such discretion has the potential for becoming a means of suppressing a particular point

of view.’” Riel v. City of Bradford, 485 F.3d 736, 755 (3d Cir. 2007).

The standard of review for vague laws is stringent, especially when “the uncertainty

induced by the statute threatens to inhibit the exercise of constitutionally protected rights.” See

Colautti v. Franklin, 439 U.S. 379, 390–91 (1979). Laws that “make unlawful a substantial

amount of constitutionally protected conduct may be held facially invalid even if they also have

legitimate application.” City of Houston v. Hill, 482 U.S. 451, 459 (1987) (citing Kolender v.

Lawson, 461 U.S. 352, 358 n.8 (1983)). Failure to satisfy this stringent standard requires that the

law be held vague on its face “even when [the law] could conceivably have had some valid

application.” Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983).

Sections 601.02(a) and (b) fail to survive constitutional scrutiny and should be declared

void for vagueness. Section 601.02(a) provides that “[n]o person shall intentionally, recklessly

or negligently distribute any handbill . . . so as to cause litter or unreasonably interfere with

pedestrians or traffic.” Section 601.02(b) provides similarly that “[n]o person shall distribute

any unsolicited handbill . . . on private property, including walkways and lawns, so as to cause

litter.” These sections, which lack definitions, are vague because a pamphleteer will not be sure

whether he is distributing literature “so as to cause litter.” Here, neither plaintiff is sure what

conduct Section 601.02 precludes. (Ex. A, Ramsey Decl. at ¶ 1; Ex. B, Brunn Decl. at ¶ 2.)

Under the vague law, a pamphleteer, such as each plaintiff, who has no intent to cause

litter, may still be charged under the ordinance for recklessly or negligently causing litter. Under

the vague law, a pamphleteer does not know whether he has violated Section 601.02(a) by

recklessly or negligently distributing literature so as to cause litter if he hands literature to

willing recipients who then throw the literature on the ground. In other words, if, for example,


16

the first few willing recipients throw the literature on the ground, is the pamphleteer supposed to

not distribute to the next willing recipient, or can the pamphleteer continue to distribute literature

to willing recipients until the tenth or thirtieth recipient throws the literature on the ground before

the pamphleteer has recklessly or negligently distributed literature as to cause litter?

Also, Section 601.02(a) does not define what it means to “unreasonably interfere with

pedestrians or traffic.” For example, under the vague law, a pamphleteer does not know whether

he is “unreasonably” interfering with pedestrians, if they have to walk around him when he is

distributing literature and also does not know whether he is “unreasonably” interfering with

pedestrians if he asks them in a loud voice to take his literature. Thus, Section 601.02(a) is not

drafted in a way to avoid punishing people for behavior they could not have known was illegal.

Furthermore, the vagueness of Sections 601.02(a) and (b) invite arbitrary and

discriminatory enforcement by government officers to censor disfavored speech. The Supreme

Court has held repeatedly that government may not use laws to restrict speech based on vague

standards that allow officials to discriminate against speech they disfavor. See Shuttlesworth v.

City of Birmingham, 394 U.S. 147, 150–51 (1969) (explaining that any grant of unrestrained

discretion to an official responsible for regulating First Amendment activities is facially

unconstitutional); Hague v. Comm. for Indus. Org., 307 U.S. 496, 516 (1939) (declaring

unconstitutional an ordinance that could be used to suppress disfavored speech).

A law enforcement officer may use Sections 601.02(a) and (b) against a person passing

out leaflets to passersby advocating their choice of local politician running for city council, their

beliefs on the legitimacy of a woman’s right to have an abortion, or their position on nationalized

healthcare. An officer who may disagree with this person’s position on any of these issues may

find that person to be engaged in the distribution of handbills “so as to cause litter” as soon as


17

some willing recipients of the literature toss the literature on the ground. Thus, Sections

601.02(a) and (b) invite arbitrary and discriminatory enforcement and are facially

unconstitutional. E.g., Shuttlesworth, 394 U.S. at 150–55.

In light of the vagueness of the ordinance, and the likelihood that it can be arbitrarily

enforced, pamphleteers, including plaintiffs, are chilled with regard to the exercise of their First

Amendment freedoms. For example, plaintiff Ramsey will not distribute her pro-life literature in

the City of Pittsburgh before the November 2, 2010, election, because she does not want to be

fined and is unsure of what conduct Section 601.02 prohibits. (Ex, A, Ramsey Decl. at ¶ 1.)

5. Section 601.02 Is Overbroad

The Supreme Court has stated that a statute is facially unconstitutional if it prohibits a

substantial amount of protected speech. United States v. Williams, 553 U.S. 285, 292 (2008); see

also Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)

(explaining that when a realistic danger exists that a statute “will significantly compromise

recognized First Amendment protections of parties not before the court,” it must be declared

unconstitutionally overbroad).

Section 601.02(c) violates the free speech rights of plaintiffs and other pamphleteers. It

also violates the rights of those people (whether owner, driver, or occupant) who want to receive

information, but are not present at the time of distribution, because it prevents pamphleteers from

placing literature on that person’s unoccupied parked car. See Krantz, 160 F.3d at 1221 (finding

overbroad an ordinance that prohibited “the placement of any handbill on any unattended

vehicle, regardless of whether the driver, owner, or an occupant might wish to receive the

handbill and notwithstanding the fact that some, if not most, people would not throw on the

ground papers left on their cars.”).


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Section 601.02(c) even applies to those who do not want to spread a religious or political

message or advertise a business, but want simply to communicate with a friend (by placing a

greeting card under the windshield wiper of a friend’s unoccupied parked car), to find a lost dog

(by placing leaflets in the door jambs of unoccupied parked cars with a photo of the missing

dog), or to notify neighbors of criminal activity (by placing notices under the windshield wipers

of unoccupied parked cars informing neighbors of a series of car break ins). See Section

601.02(c) (prohibiting the placement on “any motor vehicle parked or standing upon or along

any public street or public parking lot within the City, any unsolicited handbills, advertisements,

cards, leaflets, signs, posters, or notices without obtaining prior consent from the owner of the

vehicle.”) (emphasis added).

C. Plaintiffs Will Suffer Irreparable Harm Unless The Injunction Issues

An injunction should be issued because the constitutional rights of plaintiffs and those

similarly situated are being violated. The deprivation of First Amendment freedoms even for a

short period of time constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373–74 (1976).

Moreover, the existence of Section 601.02 creates an extensive chilling effect on free expression

generally in the City of Pittsburgh. See Dombrowski v. Pfister, 380 U.S. 479, 487 (1965). Such

a chilling effect on free expression itself constitutes irreparable injury. See id.; see also NAACP

v. Button, 371 U.S. 415, 433 (1963) (holding that “[t]he threat of sanctions may deter the[]

exercise [of constitutional rights] almost as potently as the actual application of sanctions.”).

D. An Injunction Will Not Harm Defendant

Any legitimate interest asserted by the defendant would remain fully protected by

existing provisions of State or City law, in particular the City’s anti-littering laws. There is no

legitimate or compelling governmental interest that is furthered by the unconstitutional


19

application of an ordinance against citizens, chilling the exercise of their First Amendment

rights. See G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th

Cir. 1994); Brown, 543 F. Supp. 2d at 491.

E. An Injunction Will Have No Negative Impact On The Public Interest

“The constitutional guarantee of free speech ‘serves significant societal interests’ wholly

apart from the speaker’s interest in self-expression. . . . By protecting those who wish to enter

the marketplace of ideas from government attack, the First Amendment protects the public’s

interest in receiving information.” Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 8

(1986). The public has no interest in having an unconstitutional ordinance enforced against

those who are legally exercising their First Amendment rights, but rather as the United States

Court of Appeals for the Sixth Circuit has explained, “it is always in the public interest to

prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc., 23 F.3d at 1079.

A grant of an injunction here will ensure that plaintiffs and others will remain free to

communicate peacefully their messages absent the chilling effect of threatened prosecution (or

actual prosecution) under Section 601.02. At the same time, defendant’s legitimate interests

remain fully protected by existing ordinances. The public interest will not be harmed if this

court issues an injunction.

II. THIS COURT SHOULD NOT IMPOSE A BOND ON PLAINTIFFS

The Third Circuit permits district courts to dispense with the imposition of a bond,

pursuant to Fed. R. Civ. P. 65(c), when granting an injunction. Temple Univ. v. White, 941 F.2d

201, 219 (3d Cir. 1991) (creating an equitable exception to the bond requirement in Rule 65(c)).

In particular, a bond need not be imposed in certain noncommercial and public interest cases.

See Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 803 n.8 (3d Cir. 1989)


20

(recognizing that “[o]ther courts of appeal have held that certain non-commercial and public

interest cases may require dispensing with the bond”). In considering whether to impose a bond,

district courts should “consider the possible loss to the enjoined party together with the hardship

that a bond requirement would impose on the applicant.” Elliott v. Kiesewetter, 98 F.3d 47, 59

(3d Cir. 1996). In the instant noncommercial and public interest case, this court should not

impose a bond. Any bond requirement would further harm plaintiffs’ constitutional rights by

causing them to have to pay to assert and defend their rights. Enjoining the enforcement of

Section 601.02 and allowing plaintiffs and others to exercise their First Amendment rights will

not impose any monetary requirements on defendant.

CONCLUSION

Plaintiffs respectfully request that this court grant their motion for a temporary restraining

order/preliminary injunction.

Respectfully submitted on this 6th day of October, 2010,

/s/ Edward L. White III Edward L. White III (phv pending) American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 Tel. 734-662-2984; Fax. 734-302-1758 [email protected] Plaintiffs’ counsel Francis J. Manion (phv pending) Geoffrey R. Surtees (phv pending) American Center for Law & Justice 6375 New Hope Road New Hope, Kentucky 40052 Tel. 502-549-7020; Fax. 502-549-5252 [email protected] [email protected] Plaintiffs’ counsel

/s/ Noah P. Fardo Noah P. Fardo (PA Bar No. 83848) Flaherty Fardo, LLC 5541 Walnut Street Pittsburgh, Pennsylvania 15232 Tel. 412-802-6666; Fax. 412-802-6667 [email protected] Plaintiffs’ local counsel


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CERTIFICATE OF SERVICE

I hereby certify that on October 6, 2010, a true and correct copy of the foregoing

Memorandum of Law and Exhibits A-D were (1) filed with this court by using this court’s

CM/ECF system, which will serve notice on all attorneys of record in this case who are

registered with the CM/ECF system; and (2) were caused to be sent by overnight delivery and

facsimile transmission to the following:

Daniel D. Regan City Solicitor Law Department 313 City-County Building 414 Grant Street Pittsburgh, Pennsylvania 15219 Fax: 412-255-2285 /s/ Noah P. Fardo Noah P. Fardo (PA Bar No. 83848) Flaherty Fardo, LLC 5541 Walnut Street Pittsburgh, Pennsylvania 15232 Tel. 412-802-6666; Fax. 412-802-6667 [email protected] Plaintiffs’ local counsel


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