Commonwealth v. Sterlace

391 A.2d 1066, 481 Pa. 6, 1978 Pa. LEXIS 1075
CourtSupreme Court of Pennsylvania
DecidedOctober 6, 1978
Docket151
StatusPublished
Cited by9 cases

This text of 391 A.2d 1066 (Commonwealth v. Sterlace) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Sterlace, 391 A.2d 1066, 481 Pa. 6, 1978 Pa. LEXIS 1075 (Pa. 1978).

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

McCandless Township’s Board of Commissioners enacted Ordinance No. 662 to regulate the distribution of advertising materials. Ordinance No. 662 provides, in pertinent part:

“It shall be unlawful for any person, firm, or corporation to distribute advertising material at a residence within the township (other than at the home of the person, firm or corporation distributing the same) by placing such material at the residence, on the property or on the residential mail box of the person owning or occupying the residence, unless the person, firm or corporation distributing such advertising material does so based upon the affirmative request or consent of the person occupying the residence. The foregoing provision shall not apply to the [9]*9distribution of advertising material through the United States mail service.”

Appellee Richard Sterlace, engaged in the business of distributing advertising materials to McCandless Township residences, filed a complaint in the Court of Common Pleas to enjoin enforcement of the Ordinance pending a determination of its constitutionality. The Ordinance was held constitutional and injunctive relief was denied by the court (Silvestri, J., sitting in Equity). Appellee was then charged with violations of Ordinance No. 662, found guilty in magistrate’s court, and fined $30. After a trial de novo in the Court of Common Pleas, his conviction was affirmed.

The Commonwealth Court held Ordinance No. 662 unconstitutional under the first and fourteenth amendments to the Constitution of the United States. We granted allowance of appeal and now reverse.1

I. Regulating the Time, Place or Manner of Speech

The United States Supreme Court has long recognized that all “time, place and manner” regulations — that is, regulations addressed not to the content of speech, but to some condition of its occurrence — burden the flow of speech. But it has always been necessary to show more than the existence of such an increased burden. To strike a time, place or manner regulation as violative of the first and fourteenth amendments to the Constitution, it is necessary to establish that, given the nature of the governmental interests, the regulation unduly burdens protected speech. Mr. Justice Marshall, speaking for the Court, has recently reaffirmed this view:

“Our cases make equally clear, however, that reasonable ‘time, place and manner’ regulations may be necessary to further significant governmental interests, and are permitted. .
[10]*10The nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations of time, place and manner that are reasonable.’ . . . [I]n assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State’s legitimate interest.” (footnotes omitted)

Grayned v. City of Rockford, 408 U.S. 104, 116-17, 92 S.Ct. 2294, 2303-04, 33 L.Ed.2d 222 (1972) (upholding city anti-noise ordinance regulating speech on land adjacent to school while school is in session).

More recently, Chief Justice Burger, for the Court, reiterated:

“[a] narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear may serve these important [municipal] interests without running afoul of the First Amendment.”

Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 617, 96 S.Ct. 1755, 1759, 48 L.Ed.2d 243 (1976) (overturning, as unconstitutionally vague, ordinance conditioning right to solicit door-to-door on giving advance written notice to police).

Thus, to pass constitutional muster as a regulation of “time, place and manner”, Ordinance No. 662 must be narrowly drawn, “leaving] open ample alternative channels for communications,” Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) citing Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976), and protecting a significant government or public interest. L. Tribe, American Constitutional Law, 581-582 (1978). It need not be shown that the chosen means is the “least restrictive alternative.”2

[11]*11 II. Ordinance No. 662 as a Time, Place and Manner Regulation

The Commonwealth Court correctly concluded that this ordinance “applies to all advertising, both commercial and non-commercial.”3 The preamble, too, clearly demonstrates that the township’s concerns were not with the expressive content of any speech, but were entirely focused on the place and manner in which material was to be distributed.4 Finally, nothing in the record indicates that [12]*12McCandless Township was regulating distribution in order to prevent information conveyed in appellant’s advertising materials from injuring the community. Compare Linmark, supra note 1. Thus, this regulation may be tested as a regulation of the time, place and manner speech.

The ordinance’s preamble clearly establishes the substantial township interests in preventing crime on residential property. There can be no question but that an accumulation of advertising materials at the entry of a residence, whether at a door or mailbox, poses significant risks in a residential area. Such an accumulation would be a clear invitation to burglars and vandals to enter apparently unoccupied premises.

Where, however, the homeowner has expressed a desire to receive materials distributed in the manner and place regulated by Ordinance No. 662, it is clear that this risk is materially reduced. When it is known that these materials are desired, there is ample reason to believe that homeowners in the area will both collect these materials before they can become either litter or eyesores and assume the responsibility, as they do with newspapers and other home doorstep deliveries, to suspend delivery or to arrange for these materials to be picked up in their absence.

Appellee’s argument that interests cannot be substantial where homeowner consent constitutes a defense is, as Judge Silvestri concluded, without merit. The consent clause reaffirms the nature of the interests at stake by permitting a risk-creating form of distribution only where there is reason to believe that the homeowner will be an active participant in providing protection from the risks.

[13]*13This ordinance is clearly distinguishable from one which might bar all home distribution of materials merely to ensure clean streets, cf. Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed.

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Bluebook (online)
391 A.2d 1066, 481 Pa. 6, 1978 Pa. LEXIS 1075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sterlace-pa-1978.