Pennsylvania Alliance for Jobs & Energy v. Council of Borough of Munhall

743 F.2d 182, 53 U.S.L.W. 2171

• Court: Court of Appeals for the Third Circuit
• Decided: September 10, 1984
• Docket: Nos. 83-5510, 83-5759
• Status: Published

Opinions

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This appeal arises from an order of summary judgment of the United States Dis- , . , n , „ ,, . tv- 4. • 4. i trict Court for the Western District of t, , . , ,,, ... .. r Pennsylvama upholding the constitutionali- . j. j. i Í j- • ,. ty of four local ordinances imposing time-jt j .... , ., . of-day restrictions on and permit require- . . , , j ,. .f ,. TT7 ... ments for door-to-door solicitation. We will ,, . , , „ ,, ,. , . , , affirm the mdgment of the district court.

P

The appellant, Pennsylvania Alliance for Jobs and Energy (“PAJE”),¹ is a non-profit charitable and educational organization working to influence energy policies, PAJE employees conduct door-to-door canvassing of homes in order to solicit funds and signatures on petitions.

Between September 1981 and March 1982, PAJE negotiated for canvassing permits from officials of the Pennsylvania towns of McCandless, Moon, Munhall, and Richland. PAJE received permits from all towns except Munhall, which exempted PAJE from its permit requirement. Each town advised PAJE that it would apply the time-of-day restrictions of its “transient vendor” ordinance to PAJE canvassers. Each of these transient vendor ordinances barred door-to-door canvassing after daylight hours, and two of them barred it after noon on Saturdays'²

, Becaufe PAJE Prefer® to its door-to-docr canvassmg from 4:00 P.M. to 9:00 P.M., PAJE canvassers violated the „ ’ , . „ , „ ,, , time-of-day restrictions of each of the tran- . , F sient vendor ordinances m question. PAJE , operations ceased m these towns after T_ . , . , PAJE employees engaged in after-hours . J . , ., ,. , canvassing were issued citations and threatened with arrest m McCandless, Moon, and Munhall, and were arrested in Richland.

pAJE commenced this action against the four towns in April 1983) seeking a declara^ory judgment that the ordinances violate fjrs-t and fourteenth amendments, and damages and injUnctive relief under 42 U-S-C- § 1983 (1982).³ 0n June 8,1983, the district court entered an order of summary judgment, holding that those ordinances barring door-to-door canvassing after 5:00 P.M. Monday through Saturday were constitutional time, place, and manner restrictions, but that the ordinances imposing earlier deadlines were unconstitutional under the first and fourteenth amendments.⁴ The district court also held that the permit requirements imposed by the ordinances are constitutional.

II.

We turn first to the question whether the prohibition of door-to-door canvassing after 5:00 P.M. Monday through Saturday violates the first and fourteenth amendments of the Constitution. Door-to-door canvassing for political and charitable purposes, while protected by the first amendment guarantee of freedom of speech, is subject to reasonable time, place, and manner restrictions. See Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17, 96 S.Ct. 1755, 1758-59, 48 L.Ed.2d 243 (1976); Martin v. City of Struthers, 319 U.S. 141, 146-47, 63 S.Ct. 862, 864-65, 87 L.Ed. 1313 (1943). In concluding that the time-of-day provisions at issue are reasonable time, place, and manner restrictions, the district court applied the test of Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Under Heffron, time, place and manner restrictions are reasonable if they are imposed “without reference to the content of the regulated speech, ... serve a significant governmental interest, and ... leave open ample alternative channels for communication ____” Id. at 648, 101 S.Ct. at 2564. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516, 101 S.Ct. 2882, 2897, 69 L.Ed.2d 800 (1981). PAJE argues that the district court erred in applying the Heffron “ample alternative channels of communication” standard rather than requiring that the time-of-day restrictions be the “least restrictive alternative” necessary to serve the governmental interest in question.

The applicability of the “least restrictive alternative” standard depends on whether, as PAJE contends, the time-of-day restrictions at issue are content-based and door-to-door canvassing is a public forum. In Tacynec v. City of Philadelphia, 687 F.2d 793 (3d Cir.1982), this court considered the standard by which time, place, and manner restrictions of first amendment activities are to be measured. We concluded there that the Heffron “ample alternative channels of communication” standard applies, unless the regulation in question is content-based. Then the more stringent “least restrictive'alternative” standard is appropriate because, as Judge Adams noted, of the special “danger to First Amendment freedoms inherent in a content-based scheme of regulation.” Id. at 798. See Frumer v. Cheltenham Township, 709 F.2d 874, 877 (3d Cir.1983). Restrictions of speech in public forums are also subject to heightened scrutiny under the first amendment. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972); Hague v. C.I.O., 307 U.S. 496, 515-16, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939). However, the Supreme Court has recently reiterated that viewpoint-neutral time, place, and manner restrictions of speech in non-public forums are to be measured by the Heffron “ample alternative channels of communication” test. See Members of the City Council of Los Angeles v. Taxpayers for Vincent, — U.S. -, -, 104 S.Ct. 2118, 2133, 80 L.Ed.2d 772 (1984).

PAJE argues that the transient vendor ordinances that were applied to it are content-based because all of them exempt certain commercial activities from their coverage.⁵ As applied, therefore, the ordinances’ effect is to prohibit political and charitable canvassing at times when some commercial canvassing is permitted. This does not, however, render them content-based in the sense that triggers the “least restrictive alternative” standard. A regulation that is aimed at particular subject matters does not raise the spectre of government censorship as dramatically as one that is aimed at particular ideas or points of view. See Tacynec v. City of Philadelphia, 687 F.2d 793, 798 (3rd Cir. 1982). At least in a non-public forum, a categorical proscription of political speech, even in a context where other types of speech are permitted, need not satisfy the “least restrictive alternative” standard so long as no viewpoint discrimination is present. See, e.g., Members of the City Council of Los Angeles v. Taxpayers for Vincent, — U.S. -, -, 104 S.Ct. 2118, 2133, 80 L.Ed.2d 772 (1984); Greer v. Spock, 424 U.S. 828, 838-39, 96 S.Ct. 1211, 1217-18, 47 L.Ed.2d 505 (1976); Lehman v. City of Shaker Heights, 418 U.S. 298, 303-04, 94 S.Ct. 2714, 2717-18, 41 L.Ed.2d 770 (1974). The transient vendor ordinances in this case merely exempt certain commercial canvassing from regulations that extend to all other door-to-door canvassing, both commercial and non-commercial.⁶ These exemptions are clearly viewpoint-neutral and do not mandate the “least restrictive alternative” standard.

PAJE also argues that the time-of-day restrictions must satisfy the “least restrictive alternative” standard because door-to-door canvassing is a “traditional” public forum. Door-to-door canvassing is clearly a traditional form of communication. See Martin v. City of Struthers, 319 U.S. 141, 145-46, 63 S.Ct. 862, 864-65, 87 L.Ed. 1313 (1943). Nevertheless, it is equally clear that not all traditional forums are public forums for purposes of first amendment analysis. In Members of the City Council of Los Angeles v. Taxpayers for Vincent, — U.S.-, -, 104 S.Ct. 2118, 2133-34, 80 L.Ed.2d 772 (1982), the Supreme Court rejected a contention that public utility poles, traditionally used for posting political campaign signs, are a first amendment public forum. Similarly, in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), the Court held that advertising space on public buses is not a public forum. Whether a place is a public forum depends on “the nature of the place [and] ‘the pattern of its normal activities____’” Grayned v. City of Rockford, 408 U.S. 104, 118, 92 S.Ct. 2294, 2304, 33 L.Ed.2d 222 (1972) (quoting Wright, The Constitution and the Campus, 22 Vand.L.Rev. 1027, 1042 (1969)). Door-to-door canvassing takes place in private homes. The privacy of the home, and the obligation of government to protect that privacy, are entitled to particular solicitude from the courts. See, e.g., Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (1980); F.C.C. v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978); Breard v. City of Alexandria, 341 U.S. 622, 644, 71 S.Ct. 920, 933, 95 L.Ed. 1233 (1951). Indeed, the Supreme Court has noted that, because of the countervailing privacy interests of householders, “[o]f all the methods of spreading unpopular ideas, house to house canvassing seems the least entitled to extensive protection.” Hynes v. Mayor of Oradell, 425 U.S. 610, 619, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976) (quoting Z. Chafee, Free Speech in the United States 406 (1954)). Door-to-door canvassing of private homes is plainly not a public forum such that time, place, and manner regulations of it must satisfy the “least restrictive alternative” standard.

We hold, therefore, that the district court was correct in applying the “ample alternative channels of communication” test to the time-of-day restrictions in this case.

III.

PAJE also asserts that the district court erred in holding that the ordinances satisfy the Heffron test for time, place, and manner restrictions. PAJE argues that the time-of-day restrictions are not precisely drawn to serve a substantial governmental interest, and that they do not leave open ample alternative channels of communication.

The district court held the towns’ interests in preventing crime and protecting the privacy of their residents sufficient to justify the time-of-day restrictions. The sub-stantiality of these interests is beyond question. The Supreme Court has often recognized that a municipality has the “power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing.” Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17, 96 S.Ct. 1755, 1759, 48 L.Ed.2d 243 (1976). See Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 100 S.Ct. 826, 833, 63 L.Ed.2d 73 (1980); Martin v. City of Struthers, 319 U.S. 141, 144, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943). Of course, 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 of door-to-door canvassing must be precisely drawn to serve the interests they are designed to further. See Secretary of State of Maryland v. Joseph H. Munson Co., — U.S. -, -, 104 S.Ct. 2839, 2853, 81 L.Ed.2d 786 (1984); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d 73 (1980).

These ordinances’ prohibition of door-to-door canvassing after daylight hours is intimately linked to the towns’ interests in preventing crime. The district court found that each of the towns established a significant incidence of burglary and home invasion. That unregulated canvassing poses a risk of crime is well known: “burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later.” Martin v. City of Struthers, 319 U.S. 141, 146, 63 S.Ct. 862, 864, 87 L.Ed. 1313 (1943). Indeed, the record in this case indicates that at least one of the towns has had experience with canvassers being involved in burglary and other crime. See App. at 358a-60a. The local authorities’ task of detecting and preventing burglary would clearly be more difficult if strangers to their communities were permitted to roam from house to house after dark. The bans of door-to-door canvassing after dark directly and precisely serve the towns’ interest in preventing crime.

The prohibitions of canvassing after 5:00 P.M. also directly further the towns’ interest in protecting the privacy of their residents. “Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuit, is surely an important value.” Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (1980). This value is clearly promoted by regulations that protect persons from the annoyance of coping with uninvited solicitors at the dinner hour and in the evening.

We hold, therefore, that the time-of-day restrictions in these ordinances are precisely tailored to serve the towns’ substantial interests in preventing crime and protecting the privacy of their residents.

PAJE’s final challenge to the time-of-day restrictions is that they fail to leave open alternative channels of communication because most people are away from their homes during the day on weekdays. The ordinances upheld by the district court specifically permit door-to-door canvassing during the day on Saturday. Moreover, none of the ordinances prevent PAJE from conducting personal solicitation in other forums, such as parks and shopping districts, or from proselytizing by telephone or mail. We therefore find PAJE’s contention that it is left without adequate alternative channels of communication to be without merit.

Accordingly, we will affirm the district court’s holding that the time-of-day provisions in these ordinances are reasonable time, place and manner regulations permissible under the first and fourteenth amendments.

IV.

PAJE also challenges the definitional and licensing provisions of the ordinances on grounds of vagueness and over-breadth. First, PAJE argues that the definitional provisions of the transient vendor ordinances are unconstitutionally vague under the fourteenth amendment because they do not make express mention of charitable or political canvassing. We find this contention to be without merit. The due process vagueness doctrine mandates that laws provide fair notice of what conduct is proscribed. See Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1973); Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). All of the transient vendor ordinances in this case are expressly applicable to “solicitation,” as the district court noted. Moreover, each town notified PAJE in advance that it would be subject to the town’s transient vendor ordinance. It is clear, therefore, that both the language of the ordinances and the interpretation given them by the agencies charged with enforcing them, see id. at 110, 92 S.Ct. at 2299, provided PAJE with the “fair notice” required by the due process clause.

PAJE attacks the licensing provisions of the transient vendor ordinances on the ground that they delegate unfettered licensing discretion to police officials by empowering them to withhold or revoke canvassing permits on the grounds of “public health, safety, or morals.”⁷ None of the towns denied canvassing permits to PAJE. Therefore, as the district court correctly determined, PAJE may only challenge the licensing provisions under the overbreadth doctrine, which permits a party to whom a law has constitutionally been applied to assert that it is so broad on its face as to chill the first amendment rights of others. A law aimed at conduct that may constitutionally be regulated, such as door-to-door canvassing, is facially invalid only if it is substantially overbroad. See Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). That is, there must be a “realistic danger” that the law in question “will substantially compromise recognized First Amendment protections of parties not before the Court ____” Members of the City Council of Los Angeles v. Taxpayers for Vincent, — U.S. -, -, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984). No such danger has been demonstrated in this case. There is no evidence that the licensing provisions have ever been administered in a manner that would chill first amendment rights. Compare Shuttlesworth v. City of Birmingham, 394 U.S. 147, 156-59, 89 S.Ct. 935, 941-43, 22 L.Ed.2d 162 (1969) with Cox v. New Hampshire, 312 U.S. 569, 577, 61 S.Ct. 762, 766, 85 L.Ed. 1049 (1941). We therefore agree with the district court that the licensing provisions are not substantially overbroad.

V.

For the foregoing reasons, we will affirm the judgment of the district court.

1 . , „ „,TT. , 1. The individual appellants are PAJE employees who were either arrested or cited for violations c ,, ,. . of the ordinances in question.

2 . The transient vendor ordinances applied to PAJE were McCandless Ordinance No. 837, Moon Ordinance No. 96, Munhall Ordinance No. 1190, and Richland Ordinance No. 73. McCandless Ordinance No. 837 permits canvassing 9:00 A.M. to 5:00 P.M. Monday through Sunday from October 1 to April 30, and 9:00 A.M. to 9:00 P.M. May 1 to September 30. Moon Ordinance No. 96 permits canvassing 9:00 A.M. to 4:00 P.M. Monday through Friday and 9:00 A.M. to 12:00 P.M. on Saturday. Munhall Ordinance No. 1190 permits canvassing 9:00 to 5:00 P.M. Monday through Friday and 9.00 A.M. to 12:00 P.M. on Saturday. Richland Ordinance No. 73 permits canvassing 9:00 A.M. to 6:00 P.M. Monday through Sunday.

After PAJE canvassing ceased in McCandless and Moon, these towns passed ordinances specifically covering door-to-door canvassing and solicitation by charitable and political organiza- ^ McCandless Ordinance No. 820 permits , . c n nn * ** ± e An such canvassing from 9:00 A.M. to 5:00 P.M. ,, , xl f „ . , , „, _ Monday through Friday year-round: Moon Ordinance No. 227 permits it from 9:00 A.M. to 5:00 P.M. Monday through Sunday October through April and from 9:00 A.M. to 9:00 P.M. Monday through Sunday May through September.

The district court addressed the constitution-aIity of the time-of-day provisions of all six ordinances. PAJE did not challenge the bans of Sunday canvassing and accordingly the district court did not address that issue, nor do we here.

3 PAJE also brought a pendent state claim for false arrest, which is still pending before the district court

4 . No cross-appeals have been filed by the towns.

5 . See, e.g., Munhall Ordinance No. 1190, § 6 (exempting "boys and girls under the age of sixteen (16) years, who take orders for and deliver newspapers, greeting cards, candy, and the like, or who represent the Boy Scouts and Girl Scouts or similar organizations who take orders for and deliver cookies and the like, or who represent the Boy Scouts or Girl Scouts or similar organizations and take orders for and deliver cookies and the like.”).

The dissenting opinion concludes that because the Boy Scouts and Girl Scouts represent "traditional values," their inclusion in this exemption renders the Munhall ordinance “patently viewpoint-based." What this conclusion fails to take note of is that the Munhall exemption is available to all children under age sixteen who sell or deliver items such as newspapers and cookies. We think it clear that, far from evincing a design to promote "traditional” views at the expense of controversial ones, Munhall has simply recognized that there are certain types of door-to-door activities that children customarily engage in, and has come to the conclusion, which we cannot second-guess, that these children pose a lesser risk of crime than adults do.

6 . These ordinances are thus distinguishable from those condemned by the plurality in Me-tromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). The ordinances at issue in Metromedia not only entirely banned most non-commercial billboards at some sites while permitting commercial billboards, but also discriminated in favor of some types of non-commercial advertising. Id. at 513-14, 101 S.Ct. at 2895-96.

7 . Munhall Ordinance No. 1190, § 3; McCandless Ordinance No. 820, § 305.05: Richland Ordinance No. 73, § 5. Moon Ordinance No. 96, § 2, provides that "the Department of Police may issue ... a Certificate of Compliance” to any applicant who submits a written request, a photograph of himself, and who is fingerprinted by the police.