Leafletting
Leafletting refers to the distribution of printed materials, such as leaflets or tracts, to individuals in public spaces. In the United States, the practice is generally protected under the First Amendment as a form of free speech, although there are specific regulations regarding the time, place, and manner of distribution. While citizens can typically distribute leaflets on public property, such as sidewalks and parks, they must do so without obstructing traffic or compromising public safety. Certain locations, like military installations or government buildings, may restrict access for leaflet distribution.
On private property, the rules become more complex. Generally, individuals need the property owner's consent to distribute materials, and debates persist over balancing property rights with free speech rights. In some instances, such as private universities or company towns, courts have recognized limited rights to distribute literature. However, the majority view maintains that property owners retain the right to exclude such activities, particularly in shopping malls, which are not typically treated as public forums. Additionally, legal nuances concerning leaflet distribution can arise within neighborhoods governed by Homeowners Associations. Overall, leafletting remains an important aspect of public discourse, reflecting the ongoing tension between free expression and property rights in the United States.
Leafletting
- DEFINITION: Distribution of leaflets, tracts, or other materials to passers-by in public places
- SIGNIFICANCE: In the United States, the right to distribute leaflets is not absolute; it depends on content, time, place, and manner of distribution
American citizens generally have the right to distribute leaflets on public property, provided they do so at reasonable times and in a sensible manner. Exceptions exist if the distributed material is obscene, incites violence, or defames an individual’s character. In most cases, leaflets may be distributed on sidewalks, which are usually public property, even if a sidewalk becomes littered with discarded materials. However, distribution must not unduly hamper the flow of traffic or the public safety. Public parks and other public property are also acceptable locations. Leaflets may also be distributed on streets under certain circumstances, such as during parades, demonstrations, or other times, so long as normal traffic flow is not disrupted. However, the First Amendment right to free speech does not guarantee access to property merely because it is owned or controlled by a government agency. A government may regulate or restrict access, so long as such restrictions are formulated neutrally.
Public Property
Although individual persons and groups have a First Amendment right to distribute leaflets on public property, it is not always clear just what constitutes “public” property for purposes of leaflet distribution. Government-owned properties are generally considered to be public property; however, government property that allows restricted public access—such as military installations, the federal White House, prisons, or the headquarters of the Central Intelligence Agency—may be off limits. Religious groups have been prevented from distributing their literature on state fairgrounds unless they have permits to operate booths. A government may not deny issuance of such permits for discriminatory reasons; however, it may legitimately limit the number of permits issued because of space constraints.
Leaflets may not be placed in private mailboxes unless they are stamped and posted because mailboxes are not considered public forums. Even though they are considered government-owned or government-controlled property, their primary use is for private communication. Laws requiring the leaflets to have the names and addresses of the persons or groups who have printed, written, compiled, or otherwise prepared the messages printed on the leaflets have been struck down as detrimental to free speech.
Jury Nullification
An exception to the general right to distribute leaflets on public property exists in the case of jury nullification—the right of a jury to disregard a law and hold a defendant innocent, even though a law has been broken. Jury nullification was prevalent in the American colonies in cases in which the British government tried to prosecute colonists for smuggling. Juries would find their fellow colonists not guilty even when evidence of their guilt was overwhelming because of the general and widespread feeling that the laws themselves were repugnant. In the contemporary era, juries occasionally find defendants not guilty in cases in which the police have resorted to repulsive tactics, such as planting evidence or lying on the witness stand, or in cases in which a jury feels that the law in question should not be applied.
Although jury nullification is fundamental to the jury system, anyone who distributes leaflets that discuss jury nullification on or near courthouse property can be arrested for jury tampering. Individuals accused of jury tampering may still assert their free speech rights and exercise their right to a jury trial. Jury nullification continues to exist and can be used to acquit a defendant, but it is rarely exercised.
Distributing Leaflets on Private Property
As a general rule in the United States, there is no right to distribute leaflets on private property. There are two basic opposing views on this point, although a spectrum of perspectives exists. One view holds that the rights of private property owners can never conflict with the free speech rights of those who distribute leaflets because no one may exercise free speech rights on private property without the owner’s consent. The other view holds that rights must be balanced between property owners and those who distribute leaflets. This approach of balancing interests gained prominence in the twentieth century but has been criticized as being a flawed doctrine due to its subjective nature and risk of infringing on property rights. Furthermore, although the US Constitution prohibits only the abridgment of free speech by the government, some state constitutions go further and prohibit private individuals from abridging free speech in certain circumstances—a principle that the US Supreme Court has held is a constitutional exercise of state prerogative.
New Jersey’s state constitution allows individuals to distribute political literature at private universities, such as Princeton, whose regulations state that free speech is necessary in the search for knowledge. However, individuals do not have the right in New Jersey to distribute antiabortion literature in medical complex parking lots, where no space is provided for the public to congregate, where there is no general invitation to the public at large, and where the expressive activity is incompatible with the services provided by the facility.
In Marsh v. Alabama (1946), the US Supreme Court held that religious groups may distribute religious literature in a company-owned town. Although the town in question was privately owned, a private entity performed all normal public functions, and it was otherwise indistinguishable from other towns.
While a few state and local courts have held that groups may distribute literature in private shopping malls under certain conditions, the majority view has been that shopping mall owners can exclude such groups on property rights grounds. Most courts have either rejected the balancing of rights argument when applied to shopping mall cases, or have held that the balancing should favor shopping mall owners. The US Supreme Court has refused to resolve this issue, which has left courts split. However, the Supreme Court, in cases such as Hudgens v. NLRB (1976), has held that a shopping center is not the functional equivalent of a municipality and that the First Amendment does not protect the right to expression in a shopping center.
The issue in the shopping mall cases is whether the shopping mall has taken the place of the town square or public business district as a public forum. Where courts have held that shopping malls have become the new town square, individuals and groups have been allowed to distribute leaflets. However, most courts do not regard shopping malls as being the equivalent of a town square or other public forum. Some commentators have argued that allowing individuals or groups to distribute leaflets on private property against the owner’s wishes constitutes a “taking” of property, which requires compensation under the Fifth Amendment. Further, the complexities of laws about leafleting are also apparent in cases related to neighborhoods with Homeowners Associations. Restrictions placed on leafleting in these private communities remain a gray legal area.
Bibliography
Katz, Deanne. "Is It Legal to Hand Out Flyers." FindLaw, 21 Mar. 2019, www.findlaw.com/legalblogs/law-and-life/is-it-legal-to-hand-out-flyers. Accessed 5 Oct. 2024.
O'Neill, Kevin Francis. "Time, Place and Manner Restrictions - The First Amendment Encyclopedia." Free Speech Center, 30 July 2023, firstamendment.mtsu.edu/article/time-place-and-manner-restrictions. Accessed 5 Oct. 2024.
"Speech Plus - The Constitutional Law of Leafleting, Picketing, and Demonstrating." Justia, law.justia.com/constitution/us/amendment-01/17-speech-plus.html. Accessed 5 Oct. 2024.