Spat over leaflets vs. litter: Supreme Court won't hear it

A lower-court panel had ruled that San Clemente, Calif., which bans distribution of leaflets on car windshields, did not show that the extra litter was enough to justify curbing free-speech rights of the leafletters. The Supreme Court on Monday declined to take the case, which has yet to go to trial.

By , Staff writer

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    The Supreme Court declined to take a case after a lower-court panel ruled that San Clemente, Calif., could not ban leaflets merely due to concerns over litter.
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The US Supreme Court on Monday declined to enter a dispute between a group of political activists and the City of San Clemente, Calif., over an attempt to ban the distribution of leaflets on car windshields within city limits.

The justices declined without comment a petition to take up the case involving an ongoing challenge to the city’s antilittering ordinance. The measure permits leaflets to be handed to pedestrians on the street and to willing occupants of any vehicle, but it outlaws leaving the leaflet under a windshield wiper.

San Clemente's law says in part: “No person shall throw or deposit any commercial or noncommercial advertisement in or upon any vehicle.”

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No leaflets tucked under car windshields

The dispute stems from a June 2007 incident in which Steve Klein and nine other individuals were confronted by sheriff’s deputies while distributing literature about immigration policy on car windshields. The deputies advised Mr. Klein that he was violating the city’s antilittering ordinance.

Klein obeyed the deputies and stopped distributing his leaflets. He then filed a lawsuit in federal court, charging that the local ordinance violated his free speech rights under the First Amendment. He asked the judge to issue an injunction blocking enforcement of the ordinance.

The judge refused, ruling that the city had demonstrated a significant interest in preventing littering and promoting “esthetic values.”

Free speech trumps litter concerns

On appeal, a panel of the Ninth US Circuit Court of Appeals reversed the federal judge. The panel said Klein’s right to express his political views outweighed the city’s concerns about litter.

The appeals court said the city could justify the regulation by demonstrating a connection between leaflets placed on vehicles and a resulting substantial increase in litter. “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,” the panel said. The panel said the city had failed to make the necessary showing. (To read about some First Amendment-related cases the Supreme Court is considering this term, click here and here.)

The city's subsequent appeal to the Supreme Court was a bit unusual in that it came at the preliminary injunction stage of the case and before a trial had been held. Klein’s lawyer suggested in his brief to the high court that the justices should let the case go to trial, where a complete record could be assembled. He said the case was moving quickly toward trial, with cross-motions for summary judgment set for argument on May 3.

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