Statesboro Pub. Co., Inc. v. City of Sylvania | Cases | Westlaw

The majority holds that the ordinance at issue violates both the federal and state constitutional right to freedom of speech and press. In my opinion, this Court should not address the state constitutional issue because the trial court never reached it. Furthermore, I believe that, consistent with the First Amendment of the Constitution of the United States, the ordinance is narrowly tailored to meet a substantial governmental interest and does provide for reasonable alternative avenues of communication. Therefore, I dissent to the majority's reversal of the trial court's judgment.

1. In its order, the trial court clearly analyzed and rejected a constitutional challenge based upon the First Amendment to the United States Constitution. However, the trial court did not cite either the Georgia constitutional right to freedom of speech and press, or any case law applying that right. Since the trial court did not distinctly pass on the state constitutional issue, this Court should not address that issue on appeal. Harrell v. Little Pup Development & Constr., 269 Ga. 143, 145(2), 498 S.E.2d 251 (1998).

2. I agree that the Sylvania ordinance is content-neutral, and further note that the majority correctly, if implicitly, concedes that the prevention of litter and the promotion of neighborhood aesthetics are substantial interests of the City. See Durden & Ray, Litter or Literature: Does the First Amendment Protect Littering of Neighborhoods?, 26 Stetson L.Rev. 837, 842–845 (1997).

I do not agree with the major premise of the majority opinion, which is that the ordinance is not narrowly tailored so as to meet those substantial interests because it “bans a substantial amount of speech....” The ordinance “bans” no amount of speech, but rather *97 simply imposes restrictions as to time, place, and manner of some forms of speech. The ordinance's restrictions apply to all printed material, whether of a political, religious, or community nature. Of course, this broad application to all non-commercial speech, as well as to commercial speech, is precisely what makes the ordinance content-neutral. Thus, I believe that the majority incorrectly uses the broad applicability of the ordinance, which is the very factor demonstrating its constitutional neutrality, as the basis for holding that the ordinance is too broadly tailored to pass constitutional muster. The majority cites Ward v. Rock Against Racism, 491 U.S. 781, 799(II)(B), 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) for the proposition that the regulation must not burden substantially more speech than necessary. In context, however, this proposition does not mean that restrictions as to time, place, and manner should not apply to speech of widely varying content, but that the restrictions should not broadly apply to many modes of speech which do not cause the evil which the regulation seeks to eliminate. Ward v. Rock Against Racism, supra at 799(II)(B), fn. 7, 109 S.Ct. 2746. Thus, it is constitutionally permissible for the City's ordinance to apply broadly to all of those forms of speech which can cause litter and diminish the aesthetics of the community.

“[T]he requirement of narrow tailoring is satisfied ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ [Cits.]” Ward v. Rock Against Racism, supra at 799(II)(B), 109 S.Ct. 2746. A court does not determine the validity of time, place, or manner regulations on the basis of its agreement with the governmental entity concerning the most appropriate method for promoting its governmental interests or the degree to which those interests should be promoted. Ward v. Rock Against Racism, supra at 800(II)(B), 109 S.Ct. 2746. Thus, the majority mistakenly relies on the existence of other possible methods to prevent litter and promote aesthetics. Time, place, and manner regulations are not “invalid simply because there is some imaginable alternative that might be less burdensome on speech. [Cit.]” United States v. Albertini, 472 U.S. 675, 689(III), 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985).

I believe that the requirement of narrow tailoring is met in this case, because the City **301 would achieve its goals of litter control and aesthetics less effectively without the ordinance. A different conclusion is not required by the City's decision to permit certain methods of residential delivery which can potentially cause litter and visual blight. In fact, the Supreme Court of the United States “has allowed cities to enact partial solutions to further their aesthetic interests, [cits.], and has explicitly rejected a requirement that such solutions be part of a ‘comprehensive plan’ to improve aesthetics, [cit.].” Gold Coast Publications v. Corrigan, 42 F.3d 1336, 1347(III)(A)(2)(b) (11 ^th Cir.1994). Moreover, the delivery methods permitted by the *98 ordinance have less negative effect on the City's interests than those methods which are prohibited. Papers left in yards, driveways, walkways, or porches are more likely to become scattered than those which are secured to doorknobs or mailboxes or delivered personally or by mail. Furthermore, homeowners clearly desire materials for which they have paid and, thus, are likely to assume responsibility for those materials.

The ordinance provides for alternative means of communication, but the majority dismisses them as inadequate due to their expense. However, the evidence of record regarding the cost of delivery by mail undermines the majority's assertion that that method is “prohibitively expensive.” (Emphasis supplied.) Statesboro Publishing itself does not so contend, but argues only that mail is “slower, more costly and less reliable.” In response to an interrogatory, Statesboro Publishing admits that it is presently using mail to deliver its publication in the City and that mail is its delivery method on rural routes. The majority also opines that delivery of the papers on doorknobs or in mailbox hanging devices would entail “substantial costs.” However, the evidence does not show that the cost of this method of delivery is substantial. Instead, Statesboro Publishing merely speculates that the cost would be comparable to the alternative of hand delivery directly to each resident. Moreover, “[t]he First Amendment does not guarantee a right to the most cost-effective means of distribution....” Globe Newspaper Co. v. Beacon Hill Architectural Comm., 100 F.3d 175, 193(I)(D) (1 ^st Cir.1996). At best, Statesboro Publishing has shown that the ordinance has removed its most cost-effective means of delivery. A publisher of written material is not entitled to a particular mode of delivery at the expense of the City's substantial interest in preventing litter and promoting aesthetics.

3. Although the majority does not address it, Statesboro Publishing also contends that the ordinance violates its right to equal protection. However, it bases this contention upon essentially the same reasons advanced in support of the First Amendment challenge. Holmberg v. City of Ramsey, 12 F.3d 140, 144 (8 ^th Cir.1993). In my *99 opinion, both the First Amendment and the equal protection challenges are without merit, and the issue regarding the state constitutional right to freedom of speech and press is not properly before this Court. Therefore, I respectfully dissent.