Bergstein & Ullrich strike down anti-leafleting law

A federal judge in White Plains has held that a municipal law that forbids windshield leafleting violates the First Amendment in the absence of any evidence that the prohibition serves the government interest of avoiding litter. The trial court awards summary judgment to the plaintiff on his as-applied challenge against the Town and also orders a trial against two police officers who allegedly told the plaintiff he could not engage in face-to-face leafleting at a Community Day in Putnam County.

The case is Robinson v. Town of Kent, 2011 U.S. Dist. LEXIS 149255, decided by Southern District Judge Seibel on December 29. Bergstein & Ullrich, LLP, represents the plaintiff. It all started when Ernest Robinson showed up at Town of Kent Community Day on September 13, 2009 to hand out provocative leaflets that criticized a local judge. When Robinson placed these leaflets under the windshield wipers of parked cars in the parking lot, a police officer ordered him to cease and desist under a Town law that prohibited this kind of leafleting. Robinson did as he was told and removed the flyers from the vehicles. When Robinson next went into the park where the Community Day was situated for the purposes of leafleting members of the community, he testified that two police officers told him he could not do that, either. He sued under the First Amendment.

The district court ruling is in two parts. On the windshield leafleting claim, Judge Seibel adopts the reasoning of the Seventh, Eighth and Ninth Circuits, which hold that the "time, place and manner" test requires the government to prove that the windshield anti-leafleting law is justified by concrete littering concerns. (The Sixth Circuit went the other way on this issue). This makes Robinson v. Town of Kent the first case in the Second Circuit to strike down such a law, as the Town is only able to speculate that the need to prohibit littering outweighs the First Amendment right to leaflet. The Court states, "[t]he Town has not carried its burden. It has not shown either the reasons for the law's passage in 1973 or established a factual basis for concluding that leafleting on vehicles causes the problems the Town asserts. Although this Court can imagine an ordinance like Section 45-12 being justifiable, the Defendants in this case have not shown that the justifications apply here."As the law violates the First Amendment, the Town is liable because the police invoked it in telling Robinson to stop leafleting parked windshields. Robinson is granted summary judgment.

Robinson also claims that when he then went over to the public park where the Town was hosting Community Day, the police told him that he could not leaflet people face-to-face. Although the police deny that allegation, if the jury believes Robinson's testimony, then he wins that portion of his First Amendment case as well. That part of the case goes to trial.