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What Can Cities Do About Unwanted Written Materials? The Sixth Circuit Provides Some Guidance

What can cities do about the free newspapers, phone books, and other materials that gets dropped off in your driveway? As more information becomes available online, far more written material that gets delivered to our doors may be unwanted. The U.S. Court of Appeals from the Sixth Circuit has provided guidance on how cities can regulate these publications.

In Lexington H-L Servs. v. Lexington-Fayette Urban Cty. Gov’t, 879 F.3d 224, 226 (6th Cir. 2018), the Sixth Circuit reversed a preliminary injunction against a Lexington-Fayette Urban County Government ordinance that restricted the delivery of unsolicited written materials.

Lexington’s ordinance restricted the delivery of unsolicited written materials to six specific locations: (1) on a porch nearest the front door; (2) securely attached to the front door; (3) through a mail slot; (4) between an unlocked exterior front door and an interior front door; (5) in a distribution box located on or adjacent to the premises; or (6) personally with the owner, occupant, or lessee of the premises. Id. at 227.

The Court analyzed the ordinance under the First Amendment to the U.S. Constitution. It held that the ordinance was content-neutral, meaning that the ordinance applied regardless of the content or message of the written materials. Regulations are content-neutral when they can be enforced without having to read the written communication. Because the ordinance was content-neutral, the Court concluded that “intermediate scrutiny” applied, meaning that the government must demonstrate a “substantial interest.” The court then held that Lexington had demonstrated two substantial interests that met intermediate scrutiny: reducing visual blight and reducing litter. The court did not hold that the written materials were litter when they were placed in a driveway, but held that they could become litter if they ended up in streets or on other public property. To demonstrate that unsolicited written materials can become litter, Lexington relied on findings by the Louisville Metro Government when it enacted a similar ordinance.

The court also concluded that the ordinance did not violate the First Amendment, because it left open alternative channels of communication. It applied only to unsolicited written materials, and it still left six options for delivering unsolicited materials.

While a city may not enact an outright ban on unsolicited written materials, the Sixth Circuit has made it clear that a carefully drafted ordinance intended to reduce visual blight and litter does not violate the First Amendment.

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