This post was authored by Otten Johnson summer law clerk Alex Gano.  Alex is a rising third-year law student at the University of Colorado Law School.

Last week, a federal magistrate judge in Boston denied a plaintiff’s motion for summary judgment against the City of Cambridge, Massachusetts, in a case involving a municipal ordinance and state law that (might) prohibit non-commercial leafletting of parked cars. The court held that the plaintiff’s case against the City was moot because the City had recently amended its ordinance to allow non-commercial leafletting on private property.  The court also considered and rejected the City’s motion to join the Commonwealth of Massachusetts to the case citing the Eleventh Amendment.  The order in Soto v. City of Cambridge acknowledges a circuit split over the constitutionality of laws banning non-commercial leafletting, but the court ultimately declined to weigh in on the controversy.

Cambridge passed the municipal ordinance at issue in 1992. It made unlawful the posting of handbills on private property without the property owner’s consent.  The plaintiff, Paula Soto, operated a nonprofit organization that sought to raise awareness about political and social issues that it believes the mainstream media does not adequately cover.  Ms. Soto distributes around 1,000 flyers per month for a film series held in the community room of her apartment building.  On December 12, 2011, a Cambridge police officer stopped Ms. Soto and informed her that she could not leaflet parked cars.  The next day, Ms. Soto contacted the ACLU, which later filed suit against the City for violating Ms. Soto’s First Amendment right to free speech.

Last May, the Cambridge City Council amended the Ordinance at issue to clearly legalize the distribution of non-commercial handbills.  “In light of this fact,” the Court wrote, “there is no basis to issue either injunctive relief or declaratory relief being sought by the plaintiff.”  The Order cites two cases for the proposition that ruling on the constitutionality of a repealed law would amount to an advisory opinion, which the “case or controversy” requirement of Article III prohibits.

The City maintained that it may still prohibit noncommercial leafletting under a Massachusetts statute that prohibits “put[ting] on, or in any manner affix[ing] to [private] property…any…notice…without first obtaining the written consent of…the [property’s] owner.”  The Commonwealth declined to opine on whether its statute reached noncommercial leafletting of cars, and the plaintiff adduced no evidence that the City had ever enforced the statute against distributors of noncommercial leaflets.  Without a record of enforcement, the court held that the plaintiff’s concern was “merely speculative” and “that there is no live controversy for this court to address.” The City moved to add the Commonwealth so that it could defend the constitutionality of its statute, but the Commonwealth declined to join voluntarily, and the court cited the Eleventh Amendment of the U.S. Constitution as its basis for refusing to join the Commonwealth without its consent.

Soto v. City of Cambridge is the most recent chapter of an eighty-year debate about to what extent the First Amendment protects the distribution of pamphlets and leaflets.  Chief Justice Charles Evan Hughes once described pamphleteering and leafletting as “historic weapons in the defense of liberty,” and through most of the twentieth century, the Supreme Court routinely struck down total bans on this form of expressive conduct. More recent jurisprudence on this subject recognizes a legitimate or substantial governmental interest in curbing litter and visual blight. Courts generally agree that these anti-littering statutes constitute content neutral “time, place, and manner” restrictions, but the Sixth and Ninth Circuit have reached opposite conclusions on whether these statutes are sufficiently “narrowly tailored” and “leave open adequate alternative channels of communication.”  Now that summary judgment has been denied, perhaps we will soon learn where the First Circuit stands on this issue.

Soto v. City of Cambridge, No. 13-10822-JGD (D. Mass. June 20, 2016).