Horina, Donald N. v. City Granite City IL ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-1239 & 07-2623
DONALD N. HORINA,
Plaintiff-Appellee,
v.
THE CITY OF GRANITE CITY, ILLINOIS,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Southern District of Illinois.
No. 05 C 79—Michael J. Reagan, Judge.
____________
ARGUED FEBRUARY 19, 2008—DECIDED AUGUST 7, 2008
____________
Before MANION, KANNE, and TINDER, Circuit Judges.
KANNE, Circuit Judge. Donald Horina filed a civil-rights
action against the City of Granite City, see 42 U.S.C. § 1983,
alleging that certain provisions of Ordinance No. 7861—the
City’s regulation on the manner in which individuals
can distribute handbills in public—violated his First
Amendment right to distribute religious literature. The
district court, however, determined that the entire Ordi-
nance is unconstitutional because the City produced no
evidence showing that any restrictions on handbilling
were needed to further a substantial government inter-
2 Nos. 07-1239 & 07-2623
est. The court further awarded Horina $2,772.00 in com-
pensatory damages, and $62,702.02 in attorneys’ fees and
costs. We affirm the district court’s judgment that Ordi-
nance No. 7861 is unconstitutional. However, we reverse
the district court’s judgment awarding Horina compensa-
tory damages, and remand this matter so the district
court can revisit the issue. And following the parties’
stipulation, we order the district court to modify the
amount of attorneys’ fees and costs due to Horina to
$43,622.02.
I. HISTORY
The facts are undisputed. Horina is a retired teacher
from St. Charles, Missouri. As part of what he believes to
be his calling as a Christian to tell others about their need
to be “born again,” Horina regularly traveled across the
Mississippi River to Granite City, Illinois, to distribute pro-
life literature and Gospel tracts—small pamphlets
that include Bible verses and short interpretations. Al-
though he distributed the literature around various areas
in the City, he regularly frequented the sidewalk in front
of the Hope Clinic for Women, an outpatient surgical
treatment center that provides abortions.
Horina would regularly place his literature on the
windshields of cars parked on the city streets adjacent to
the Hope Clinic, much to the chagrin of at least one indi-
vidual: Nathan Lang, a security guard at the clinic. After
Horina placed Gospel tracts on Lang’s car on two separate
occasions, Lang confronted Horina and asked him to
stop placing the tracts on his car. But despite the request,
in July 2003 Lang watched from afar as Horina slid a
Gospel tract through the open driver’s side window of his
car.
Nos. 07-1239 & 07-2623 3
In response, Lang contacted the Granite City Police
Department, which, in turn, cited Horina for violating the
City’s ordinance prohibiting the “indiscriminate” distribu-
tion of “cards, circulars, handbills, samples of merchandise
or any advertising matter whatsoever on any public
street or sidewalk”. However, the City later altered the
charge to a violation of the City’s trespass ordinance. See
Granite City, Ill., Municipal Code tit. IX, chs. 9.60.020(D),
9.63.010. Horina pled guilty to the violation as amended,
and was levied a $100 fine.
Nearly two years after Horina paid his fine he filed
suit against Granite City, alleging that the City’s ordinance
prohibiting “indiscriminate” handbilling violated his
rights under the First and Fourteenth Amendments to
engage in protected speech—specifically, the distribution
of religious literature. He asked the district court to enjoin
the City from enforcing the ordinance and to award
him monetary damages “to compensate” him “for the
violation of his civil rights.” The district court granted
Horina’s request for an injunction—a result that spurred
the City to repeal its prohibition on “indiscriminate”
handbilling, and to replace it with a revised regulation,
Ordinance No. 7861.
Much like Granite City’s earlier restriction, Ordinance
No. 7861 defined “handbill” to include “any leaflet,
pamphlet, brochure, notice, handout, circular, card,
photograph, drawing, or advertisement printed on paper
or on cardboard.” However, Ordinance No. 7861 replaced
the broad ban on “indiscriminate” handbilling with six
separate regulations, each specifying when and how an
individual could distribute literature. For instance, § 2(b)
of the Ordinance stated that “[n]o person shall deposit or
throw any handbill in or upon any vehicle.” Section 2(c) of
4 Nos. 07-1239 & 07-2623
the Ordinance similarly provided: “No person shall
deposit, place, or throw any handbill upon any private
premises which are temporarily or continuously unoccu-
pied.” Any individual who was caught handbilling out-
side of the Ordinance’s parameters would be subject to a
fine “no less than $25 and up to $500.” As the City ex-
plained in the Ordinance’s preamble, such restrictions
were necessary to protect the City’s residents’ “desire to
be free from unwanted intrusion, trespass, harassment,
and litter.”
Shortly after Granite City enacted Ordinance No. 7861,
Horina amended his motion for a preliminary injunction
against the ban on “indiscriminate” handbilling to in-
clude the newly enacted Ordinance. In his motion, Horina
asserted that § 2(b) and § 2(c) were facially unconstitutional
because they were unreasonable restrictions on the time,
place, and manner in which he could place handbills on
automobile windshields and unoccupied homes. See
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989);
Weinberg v. City of Chi., 310 F.3d 1029, 1036-37 (7th Cir.
2002). Specifically, Horina asserted that the City could
not show that § 2(b)’s and § 2(c)’s restrictions served a
substantial government interest because there was no
proof that handbilling caused the social ills that the City
claimed it had an interest in preventing—“intrusion,
trespass, harassment, and litter.” The district judge,
Michael Reagan, pressed the City on this issue at the
hearing on Horina’s amended motion, and asked the City
if it had any evidence “of an empirical nature to support
this ordinance other than to assume [that] there is going to
be intrusion . . . [and] litter.” The City, however, responded
that it had not completed “any specific studies with regard
to the correlation between handbilling and intrusion,
Nos. 07-1239 & 07-2623 5
trespass, harassment, and litter,” and that it was, in fact,
unnecessary for the City to produce evidence estab-
lishing a correlation between handbilling and those
problems.
The court took Horina’s amended preliminary-injunction
motion under advisement. But before Judge Reagan
rendered a ruling, Horina filed a motion for a judgment
on the pleadings, see Fed. R. Civ. P. 12(c), largely reassert-
ing the arguments he had made in his amended
preliminary-injunction motion, and asking the district
court to enjoin Granite City from enforcing § 2(b) and § 2(c)
permanently on the ground that the provisions were
unconstitutional. In response, the City repeated that
Ordinance No. 7861’s restrictions were necessary “to assure
the citizens of Granite City the desire to be free of un-
wanted intrusion, trespass, harassment, and litter,” but yet
again pointed to no evidence showing that handbilling
caused those problems. Apparently concerned with the
City’s lack of proffered evidence justifying the Ordinance,
Judge Reagan held a status conference during which he
again asked the City whether it would introduce evi-
dence showing that handbilling caused intrusion,
trespass, harassment, or litter. The City, however, re-
sponded that it would not.
The district court granted Horina’s motion for judgment
on the pleadings, but went beyond the relief that he
requested. The court did not permanently enjoin Granite
City from enforcing only § 2(b) and § 2(c), as Horina
requested; instead, the court permanently enjoined the City
from enforcing Ordinance No. 7861 in its entirety. The
court’s expansive relief was based on its determination that
the City failed to satisfy its burden of producing evi-
dence showing that handbilling “constitutes or in any
6 Nos. 07-1239 & 07-2623
way results in ‘unwanted intrusion, trespass, harassment,
[or] litter’ ” in the City. The court pointed out that the
City failed to proffer any “empirical studies, testimony,
police records, reported injuries, or anything else”; that
the City did not “even allege that such evidence exists”;
and that the City offered only “’mere conjecture’ ” in an
attempt to establish the Ordinance’s justifications. And
because the City could not show that the entire Ordinance
served a substantial government interest, the court con-
cluded, the Ordinance, as a whole, was an unreasonable
restriction on the time, place, and manner in which individ-
uals could handbill. Judge Reagan therefore declared
the Ordinance unconstitutional on its face, and perma-
nently enjoined the City from enforcing it.
Armed with the district court’s judgment, Horina
sought $5,000.00 in compensatory damages from Granite
City to account for the “humiliation, emotional distress,
and loss of First Amendment rights” that he endured due
to the City’s unconstitutional handbilling restrictions. The
district court thus scheduled a bench trial solely on the
issue of damages. Horina was the only witness to testify
at the trial, but his testimony regarding the injuries he
suffered was framed only in the most general terms and
was often contradictory. For instance, Horina testified
that, for about one year after his citation for trespass, he
avoided the City altogether and suffered personal humilia-
tion as a result. But Horina also admitted that he continued
to distribute Gospel tracts in other cities, and that he
eventually returned to the City to distribute his tracts once
or twice a week. Horina further claimed that, because of
the City’s restrictions, he feared that he would be cited for
distributing his tracts. Horina also acknowledged, how-
ever, that in earlier court proceedings related to his chal-
Nos. 07-1239 & 07-2623 7
lenge to the City’s ban on “indiscriminate” handbilling, the
City’s Chief of Police stated that Horina would not be cited
for his activities, and that in response, Horina “felt that
there was less of a chance of getting arrested.” Indeed,
Horina admitted, other than his trespass citation, he was
not arrested for distributing his tracts, or even asked by
City authorities to limit his activities. Horina also testified
about the out-of-pocket expenses he incurred while
challenging the City’s restrictions. In particular, Horina
stated that he appeared in court “six to eight times,” and
that during each of those trips he spent “[u]nder $10” for
meals. However, Horina also stated that he had no receipts
from those purchases, and provided no other informa-
tion regarding his expenses related to his trips to court.
The district court issued a post-trial order, in which it
awarded Horina $2,772.00 in compensatory damages.
Specifically, the court awarded Horina $672.00 to account
for his out-of-pocket expenses; that amount, the court
stated, “should adequately cover approximately 8 court
appearances (estimating one hour each at $25.00 per
hour), round-trip travel of one hour per trip (again, at
$25.00 per hour) mileage (480 miles at .40 per mile) and
meals (eight at $10 each).” But the court also deter-
mined that Horina was not due the full $5,000.00 he
requested for his “humiliation, emotional distress, and
loss of First Amendment rights.” In explaining the award,
the court did not point to any particular portion of
Horina’s testimony detailing his injuries. Instead, the
court stated that “the precise extent to which [Horina’s]
constitutional rights were chilled remains relatively
unclear,” and opined that “Horina has minimal evidence
regarding his emotional distress and feelings of humilia-
tion.” Nevertheless, the court deemed what “minimal
8 Nos. 07-1239 & 07-2623
evidence” Horina introduced still warranted an award of
$2,100.00. Shortly thereafter, the court also calculated
that Horina was due $62,702.02 in attorneys’ fees and
costs, and issued a separate order awarding Horina that
amount. See 42 U.S.C. § 1988; Fed. R. Civ. P. 54(d)(1).
II. ANALYSIS
Granite City makes three arguments on appeal. The City
first contends that the district court incorrectly con-
cluded that Ordinance No. 7861 is unconstitutional. The
City further argues that the district court erroneously
calculated the compensatory-damages award, and like-
wise incorrectly determined how much in attorneys’ fees
and costs Horina was due. We address each argument
below.
A. The district court’s determination that Ordinance No.
7861 is unconstitutional
Before we address the merits of Granite City’s chal-
lenge to the district court’s decision striking down Ordi-
nance No. 7861, we must first clarify this case’s procedural
posture. The City states that it appeals from the district
court’s grant of Horina’s Rule 12(c) motion for judgment
on the pleadings, an assertion with which Horina agrees.
If the parties are correct, then we would review the dis-
trict court’s decision as we would a decision granting a
motion to dismiss under Fed. R. Civ. P. 12(b)(6). See
Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 623 (7th Cir.
2007); Guise v. BWM Mortgage, LLC, 377 F.3d 795, 798 (7th
Cir. 2004). But in agreeing on this case’s procedural
posture, the parties ignore that the district court re-
Nos. 07-1239 & 07-2623 9
peatedly asked the City to proffer evidence outside of
its pleadings to show that handbilling caused litter,
intrusion, trespass, and harassment. And in so seeking
this additional evidence, the district court both treated
Horina’s Rule 12(c) motion as one for summary judg-
ment, see Fed. R. Civ. P. 12(c)-(d); Omega Healthcare Inves-
tors, Inc. v. Res-Care, Inc., 475 F.3d 853, 856 n.3 (7th Cir.
2007), and put the parties on notice that it would treat
the motion as one for summary judgment, see Fleischfresser
v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 684 (7th Cir. 1994)
(stating that district court gives sufficient notice that it is
treating Rule 12 motion as summary-judgment motion
when “both parties had every reason to know that extrane-
ous material was being considered”). We will thus re-
view the district court’s decision as if it granted Horina
summary judgment—employing a de novo review, see
Foskett v. Great Wolf Resorts, Inc., 518 F.3d 518, 522 (7th Cir.
2008), we will view the record in the light most favorable
to Granite City, the non-moving party, and will examine
whether there is a genuine issue of material fact that
precludes judgment as a matter of law, see Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Cady v. Sheahan, 467 F.3d 1057, 1060-61 (7th Cir. 2006).
Traditionally, “handbilling” has referred to the practice
of offering written material—be it handbills, pamphlets,
tracts, advertisements, booklets, notices or other infor-
mation—to individuals in public places for their acceptance
or rejection. See Members of City Council v. Taxpayers for
Vincent, 466 U.S. 789, 809-10 (1984); Schneider v. New Jersey,
308 U.S. 147, 160-61 (1939). As the United States Supreme
Court recognized nearly 70 years ago in the its decision
Lovell v. Griffin, handbilling is both a method of com-
munication that has a long and venerable history that
10 Nos. 07-1239 & 07-2623
predates the birth of this nation, and is a form of speech
that is protected under the First and Fourteenth Amend-
ments. See 303 U.S. 444, 452 (1938) (noting that handbills
have “been historic weapons in the defense of liberty, as
the pamphlets of Thomas Paine and others in our own
history abundantly attest”); see also Murdock v. Pennsylvania,
319 U.S. 105, 108 (1943) (“The hand distribution of religious
tracts is an age-old form of missionary evangelism—as
old as the history of printing presses.”). And in the time
since the Supreme Court decided Lovell, federal courts
have invalidated bans on distributing literature on public
streets, see, e.g., United States v. Grace, 461 U.S. 171, 183-84
(1983); Schneider, 308 U.S. at 163-64; Weinberg, 310 F.3d at
1036-40, restrictions on individuals’ rights to engage in
door-to-door handbilling, see, e.g., Martin v. City of
Struthers, 319 U.S. 141, 149 (1943); Watseka v. Ill. Public
Action Council, 796 F.2d 1547, 1558 (7th Cir. 1986), and
licensing requirements for those who wished to distribute
their handbills door-to-door, see Watchtower Bible & Tract
Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 168-69
(2002); Lovell, 303 U.S. at 451.
But as with all forms of protected speech, the right to
handbill is not absolute, see Taxpayers for Vincent, 466
U.S. at 809-10, and federal courts have determined that
governments may enact reasonable restrictions on
handbilling that are also consistent with the First Amend-
ment. Specifically, so long as the restrictions are “content
neutral”—that is, unrelated to the content of the
speech expressed in the handbills—governments may
regulate the time, place, and manner in which the activity
of handbilling itself occurs. See Weinberg, 310 F.3d at 1036-
37. And under this “time, place, and manner analysis,”
such restrictions can survive scrutiny only if the govern-
Nos. 07-1239 & 07-2623 11
ment can show that they (1) serve a substantial govern-
ment interest; (2) are narrowly tailored to advance that
interest; and (3) leave open ample alternative channels
of communication to allow the individual handbilling
other ways to convey his or her message. See Ward, 491
U.S. at 791; Weinberg, 310 F.3d at 1036-37.
Granite City, however, argues that the time, place, and
manner analysis is an inappropriate method to assess the
constitutionality of Ordinance No. 7861 as a whole, and
that the district court was wrong to employ it. According
to the City, not all of the Ordinance’s provisions restrict
handbilling as that practice has been traditionally under-
stood—that is, distributing literature to individuals in a
public place. As the City sees it, § 2(b) and § 2(c) instead
restrict the practice of intruding on other individuals’
private property—the windshields of privately owned
automobiles and privately owned unoccupied buildings,
respectively—to leave information without first
affording individuals the opportunity to accept or reject
it. This distinction is important, the City asserts, because
private property is a nonpublic forum, meaning that
any restriction of speech in that forum should be
weighed under the “forum-based approach,” and not the
time, place, and manner analysis that the district court
employed. And under the forum-based approach, regula-
tions of speech in nonpublic fora are assessed only for
reasonableness, see Perry Educ. Ass’n v. Perry Local Educa-
tors’ Ass’n, 460 U.S. 37, 46 (1983); DeBoer v. Vill. of Oak
Park, 267 F.3d 558, 566 (7th Cir. 2001), a standard that,
the City argues, § 2(b) and § 2(c) easily satisfy.
Granite City’s argument raises interesting questions as
to whether placing handbills on privately owned auto-
mobiles and unoccupied buildings are activities that
12 Nos. 07-1239 & 07-2623
fall under the traditional definition of handbilling. But
we need not address those questions here because the
City’s argument in support of the forum-based approach
is fatally flawed. The forum-based approach applies
only when a government restricts speech on property
that the government itself owns. The validity of the re-
striction, in turn, depends on the type of government
property—or “forum”—in which the speech occurs. See
Int’t Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 678
(1992); Perry Educ. Ass’n, 460 U.S. at 45-46; Gilles v.
Blanchard, 477 F.3d 466, 473-74 (7th Cir. 2007). And thus
far, the Supreme Court has identified three publicly
owned fora that guide this approach: traditional public
fora (such as street corners, city squares, and city parks),
fora designated for a particular use (such as a publicly
owned amphitheater), and nonpublic fora (everything
else publicly owned that is not a traditional public forum
or a designated forum). See Lee, 505 U.S. at 678; see also
Gilles, 477 F.3d at 473-74 (noting dubiously that circuit
courts of appeals have “carved out a fourth category” of
public fora, “the limited designated public forum”).
In other words, the term “nonpublic forum” is not
synonymous with privately owned property, as Granite
City suggests. The designation merely signifies that the
property in question is publicly owned, but is neither a
traditional public forum, nor a designated public forum.
See Lee, 505 U.S. at 678-79 (stating that nonpublic fora
are “all remaining public property” other than traditional
public fora and designated public fora); Perry Educ. Ass’n,
460 U.S. at 46 (“Public property which is not by tradition
or designation a forum for public communication is
governed by different standards.”); Gilles, 477 F.3d at 474.
The City is therefore wrong to assert that § 2(b) and § 2(c)
Nos. 07-1239 & 07-2623 13
should be weighed under the forum-based approach
solely because those provisions prohibit intrusion on
other individuals’ private property.
That said, Granite City does not otherwise challenge the
district court’s application of the time, place, and manner
analysis. And because Ordinance No. 7861 is a content-
neutral restriction, we see no reason to conclude that the
district court was wrong to employ that analysis when
assessing the Ordinance’s constitutionality. See Jobe v. City
of Catlettsburg, 409 F.3d 261, 267 (6th Cir. 2005) (con-
cluding that public-forum doctrine does not apply to
privately owned automobiles parked on city streets, and
that restrictions on placing pamphlets on automobiles are
assessed under time, place, and manner analysis); Krantz
v. City of Fort Smith, 160 F.3d 1214, 1219 (8th Cir. 1998)
(applying time, place, and manner analysis to assess
prohibition of placing handbills on automobile wind-
shields); Watseka, 796 F.2d at 1552-53 (applying time,
place, and manner analysis to weigh ordinance regulating
when individuals may engage in door-to-door soliciting).
The question thus becomes whether the district court
correctly concluded that Ordinance No. 7861, in its entirety,
is an unconstitutional time, place, and manner restriction
on handbilling. Granite City argues “no,” and challenges
the court’s conclusion that the City failed to proffer evi-
dence showing that handbilling causes litter, intrusion,
trespass, and harassment. Specifically, the City takes issue
with the district court’s determination that the City needed
to present “empirical studies, testimony, police records,
[or] reported injuries” showing that the Ordinance was
justified. In Granite City’s view, the district court over-
stated what evidence it needed to proffer when it was,
in fact, under “no obligation” to present evidence “to
14 Nos. 07-1239 & 07-2623
support the purposes of the Ordinance.” Instead, the City
argues, “common sense” shows that the Ordinance was
needed to combat litter, intrusion, trespass, and harass-
ment.
We have no quarrel with Granite City’s claim that the
prevention of litter, intrusion, trespass, and harassment
is a substantial government interest. See Watchtower Bible
& Tract Soc’y of N.Y., Inc., 536 U.S. at 164-65 (stating
that prevention of crime and protecting residents’ privacy
are “important interests”); Jobe, 409 F.3d at 268 (deter-
mining that “litter and visual blight” and the protection
of individual property rights are substantial government
interests).
But we cannot accept Granite City’s assertion that it
can rely on mere common sense to show that Ordinance
No. 7861 is needed to combat those ills. Although com-
mon sense does have its value when assessing the con-
stitutionality of an ordinance or statute, see Anderson v.
Milwaukee County, 433 F.3d 975, 978 (7th Cir. 2006); Wein-
berg, 310 F.3d at 1042, it can all-too-easily be used to mask
unsupported conjecture, which is, of course, verboten in
the First Amendment context, see Nixon v. Shrink Mo. Gov’t
PAC, 528 U.S. 377, 392 (2000); Weinberg, 310 F.3d at 1030.
That is why “the government has the burden of showing
that there is evidence supporting its proffered justifica-
tion” for its speech restriction when asserting that the
restriction survives the time, place, and manner analysis.
Weinberg, 310 F.3d at 1038; see also DiMa Corp. v. Town of
Hallie, 185 F.3d 823, 829 (7th Cir. 1999). In satisfying this
burden, however, the government does not always need
to produce a panoply of “empirical studies, testimony,
police records, [or] reported injuries,” as Judge Reagan put
it; less evidence might be sufficient, of course, depending
Nos. 07-1239 & 07-2623 15
on the scope and context of the restriction in question. See
DiMa Corp., 185 F.3d at 829 (“’The First Amendment does
not require a city, before enacting such an ordinance, to
conduct new studies or produce evidence independent of
that already generated by other cities, so long as what-
ever evidence the city relies upon is reasonably believed to
be relevant to the problem that the city addresses.’”
(quoting City of Renton v. Playtime Theaters, Inc., 475 U.S. 41,
51 (1986)). But the government must nevertheless proffer
something showing that the restriction actually serves a
government interest, and we have struck down time,
place, and manner restrictions where the government failed
to produce “objective evidence” showing that the restric-
tions served the interests asserted. See Weinberg, 310 F.3d at
1039; Watseka, 796 F.2d at 1556.
Here, the experienced district judge correctly con-
cluded that Granite City failed to proffer any evidence
showing that handbilling caused litter, intrusion, trespass,
or harassment in the City. The record reveals that the
City introduced absolutely no evidence before the district
court showing that Ordinance No. 7861 was needed to
combat those problems. Even more, the City failed on
several occasions to respond to Judge Reagan’s requests
for evidence supporting the Ordinance’s justifications.
For its part, Granite City now points to what it deems to
be proof that handbilling causes litter, intrusion, trespass,
or harassment, but this late proffer fails to carry the day.
Specifically, the City contends that the fact that Horina
placed a Gospel tract in Lang’s automobile against his
wishes shows that Ordinance No. 7861 is needed to combat
trespass. But this point hurts the City more than it helps.
After all, for his indiscretion Horina was eventually cited
with trespassing on Lang’s car—a fact that creates the
16 Nos. 07-1239 & 07-2623
distinct impression that a broad restriction on handbilling
is not needed to combat trespass when the City already
has enacted an ordinance that proscribes trespass, see
Granite City, Ill., Municipal Code tit. IX, chs. 9.60.020,
9.63.010. See also Ward, 491 U.S. at 799 (stating that speech
restriction can withstand scrutiny under time, place, and
manner analysis only if government interest is “’achieved
less effectively absent the regulation’” (quoting United
States v. Albertini, 472 U.S. 675, 689 (1985)); Weinberg,
310 F.3d at 1040 (same).
Equally meritless is the City’s contention that the fact
that “at least one state” and “38 other cities” have passed
laws similar to Ordinance No. 7861 proves that handbilling
causes litter, intrusion, trespass, or harassment. The fact
that other states and cities have restrictions on handbilling
says nothing about whether handbilling caused litter,
intrusion, trespass, or harassment in Granite City to such
an extent as to necessitate a handbilling restriction; nor
does it alleviate the City’s burden of producing evidence
showing that the Ordinance is justified. See Playtime
Theaters, Inc., 475 U.S. at 51 (stating that evidence gen-
erated by other municipal governments must be relevant to
the problem the municipal government in question is
attempting to address); DiMa Corp., 185 F.3d at 829 (same).
But that aside, because the City points to no other
evidence showing that handbilling causes those problems,
we have no basis upon which to conclude that any of the
Ordinance’s provisions serve a substantial government
interest.
But even if Granite City had proffered sufficient evid-
ence establishing that Ordinance No. 7861 serves a sub-
stantial government interest, the City has not shown
that the Ordinance satisfies the remaining two elements
Nos. 07-1239 & 07-2623 17
of the time, place, and manner analysis. First, the Ordi-
nance is not narrowly tailored. A restriction on hand-
billing is narrowly tailored if it “’promotes a substantial
government interest that would be achieved less effectively
absent the [restriction].’” Weinberg, 310 F.3d at 1040(quoting Ward, 491 U.S. at 799). But the City has not
explained to us how the prevention of litter, intrusion,
trespass, or harassment is achieved less effectively without
the Ordinance, and has thus waived the argument.1 See
APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624,
631 (7th Cir. 2002). And even if the City had raised the
point, it still would not have prevailed. As we alluded to
earlier, the City already proscribes in some form litter,
intrusion, trespass, or harassment, see Granite City, Ill.,
Municipal Code tit. VIII, ch. 8.64.020; Granite City, Ill.,
1
This is a costly waiver indeed. Notwithstanding our discus-
sion of Granite City’s arguments up to this point, the City’s
failure to explain how the prevention of litter, intrusion,
trespass, or harassment is achieved less effectively without
Ordinance No. 7861 actually dooms its appeal. Without such an
explanation, the City cannot establish that the Ordinance is
narrowly tailored, which, in turn, means that the City cannot
show that the Ordinance satisfies the time, place, and manner
analysis, and thus survives constitutional scrutiny. See Ward,
491 U.S. at 791 (stating that under time, place, and manner
analysis, speech restriction can survive constitutional scrutiny
only if government can show that it (1) serves substantial
government interest; (2) is narrowly tailored to advance that
interest; and (3) leaves open ample alternative channels of
communication to allow speaker other ways to convey his or
her message). Nevertheless, for the sake of completeness,
we will continue to explain why the Ordinance fails to satisfy
the entire time, place, and manner analysis. See Weinberg,
310 F.3d at 1040.
18 Nos. 07-1239 & 07-2623
Municipal Code tit. IX, chs. 9.24.020, 9.60.020, 9.63.010,
leading us to believe that the City can currently combat
those problems very effectively without resorting to a
broad prohibition on handbilling, Watseka, 796 F.2d at 1556(stating that solicitation ban is not narrowly tailored
when “a city can enforce its trespass law against solicitors
who enter or remain on private property after the owner
has indicated the solicitor is not welcome”); Wis. Action
Coalition v. Kenosha, 767 F.2d 1248, 1257 (7th Cir. 1985)
(discussing less restrictive alternatives to speech regula-
tions of which Supreme Court has approved); see also
Schneider, 308 U.S. at 162-63 (“There are obvious methods
of preventing littering. Amongst these is the punishment
of those who actually throw papers on the streets. . . .
[T]he public convenience in respect of cleanliness of the
streets does not justify an exertion of the police power
which invades the free communication of information
and opinion secured by the Constitution.”).
Likewise, Ordinance No. 7861 fails to leave open ample
alternative channels of communication to allow indi-
viduals handbilling other ways to convey their message.
Granite City argues that such alternative channels
are available because, despite the Ordinance’s specific
proscriptions on handbilling, individuals may still
(1) distribute handbills to people who wish to accept
them, including the drivers of automobiles and the resi-
dents of homes; and (2) send their literature through the
mail.
We disagree. An adequate alternative does not have to be
the speaker’s first or best choice, see Heffron v. Int’l Soc. for
Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981); Gresham
v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000), or one that
provides the same audience or impact for the speech, see
Nos. 07-1239 & 07-2623 19
Ward, 491 U.S. at 802. But the alternative must be more
than “merely theoretically available”—“it must be realistic
as well.” Gresham, 225 F.3d at 906; see also Linmark Assocs.,
Inc. v. Township of Willingboro, 431 U.S. 85, 93 (1977). As
such, we have “’shown special solicitude for forms
of expression’” that involve less cost and more autonomy
for the speaker than the potentially feasible alternatives.
Gresham, 225 F.3d at 906 (quoting Taxpayers for Vincent,
466 U.S. 789, 812 n.30 (1984)); see also Linmark Assocs., Inc.,
431 U.S. at 93.
With this in mind, we believe that the alternative meth-
ods of communication forwarded by Granite City simply
are not feasible. Forcing an individual to limit handbilling
activities to person-to-person solicitation is extremely
time consuming and burdensome, particularly when the
individual intends to convey a message to people who park
their automobiles in a certain area of the city or who live in
a certain neighborhood. For instance, with § 2(b) and § 2(c)
of Ordinance No. 7861 in effect, the individual would
not be able to leave literature on the windshields of auto-
mobiles or the doorsteps of homes. Instead, the individual
would be forced to distribute literature by hand to
passersby, to people who are sitting in their parked
automobiles when the individual happened upon them,
or to people who are at home when the individual knocks
on their front door. Because of these limitations, the time
it would take the individual to convey the message to
the intended audience would increase from perhaps under
an hour to conceivably several days. And we cannot say
that an alternative channel of communication is realistic
when it requires a speaker significantly—and perhaps
prohibitively—more time to reach the same audience. See
Gresham, 225 F.3d at 906; see also City of Ladue v. Gilleo, 512
20 Nos. 07-1239 & 07-2623
U.S. 43, 57 (1994) (concluding that proposed alternative
channels of communication were unacceptable because of,
among other things, the “added costs in money or time”
the alternatives required).
Similarly, the fact that an individual could mail the
literature is no alternative to handbilling. We have
already rejected the notion that using the mail to dissemi-
nate literature provides a suitable alternative to hand-
billing, see Watseka, 796 F.2d at 1557-58, and we see no
reason to depart from that determination here. After all,
the mail system is both an expensive and unwieldily
method for individuals to distribute handbills to their
neighbors, see Gresham, 225 F.3d at 906; Taxpayers for
Vincent, 466 U.S. at 812 n.30, and a completely ineffective
method to distribute literature to people who have parked
their automobiles nearby, Weinberg, 310 F.3d at 1040 (“[A]n
alternative is not adequate if it ‘forecloses a speaker’s
ability to reach one audience even if it allows the
speaker to reach other groups.’” (quoting Gresham, 225 F.3d
at 907)). We thus reject Granite City’s contention that
Ordinance No. 7861 allows individuals who seek to
handbill ample alternative methods to convey their mes-
sages.
To recap, the district court was correct to strike down
Ordinance No. 7861. Granite City proffered no evidence
showing that the Ordinance is needed to combat litter,
intrusion, trespass, or harassment. Moreover, the Ordi-
nance neither is narrowly tailored to combat those prob-
lems, nor does it leave open ample alternative methods
for those seeking to distribute literature to convey their
message. As such, the Ordinance cannot survive con-
stitutional scrutiny. See Ward, 491 U.S. at 791; Weinberg,
310 F.3d at 1036-37.
Nos. 07-1239 & 07-2623 21
B. The district court’s award of compensatory damages to
Horina
Granite City also argues that the district court’s award
of $2,772.00 in compensatory damages to Horina was
improper. Specifically, the City contends that the district
court’s award of $672.00 for Horina’s out-of-pocket ex-
penses is not supported by the record. Instead, the City
continues, the award was impermissibly based only on
vague estimates of Horina’s expenses. The City also
argues that the district court’s award of $2,100.00 for
Horina’s “humiliation, emotional distress, and loss of
First Amendment rights” was not based on any evidence
that Horina actually suffered those injuries. We review
the district court’s legal determinations de novo and its
factual determinations for clear error. See Alexander v. City
of Milwaukee, 474 F.3d 437, 448-49 (7th Cir. 2007).
We agree with the City that the district court’s award
of $672.00 is not supported by the record. When cal-
culating compensatory damages, district courts may
make a “ ‘just and reasonable estimate’” of the damages
due, but those estimates must nevertheless be consistent
with the evidence presented regarding damages. Zazu
Designs v. L’Oreal S.A., 979 F.2d 499, 506 (7th Cir. 1992)
(quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251,
264 (1946)); see also Sulzer Carbomedics v. Or. Cardio-Devices,
Inc., 257 F.3d 449, 459-60 (5th Cir. 2001) (stating that dis-
trict court “may not determine damages by ‘speculation
or guess’” (internal citation omitted)).
But here, the evidence relevant to the calculation of the
award was lacking. The only evidence regarding Horina’s
out-of-pocket expenses was his guess that he spent
“[u]nder $10” on meals on each of the “six or eight times”
he traveled to court. And there was no evidence sup-
22 Nos. 07-1239 & 07-2623
porting an award of $80.00 for Horina’s meals, $400.00 for
his time, or $192.00 for his mileage. See Fitzgerald v. Moun-
tain States Tel. & Tel. Co., 68 F.3d 1257, 1264 (10th Cir. 1995)
(“Amounts that are speculative, remote, imaginary, or
impossible of ascertainment are not recoverable.” (internal
quotation marks and citation omitted)). The district
court thus erred in awarding Horina $672.00 for his out-of-
pocket expenses. See Zazu Designs, 979 F.2d at 506; see also
United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997)
(stating that district court’s factual findings are clearly
erroneous if they are unsupported by substantial evi-
dence, lack adequate evidentiary support, are against
clear weight of the evidence, or if court has misappre-
hended weight of evidence).
The district court likewise erred when awarding Horina
$2,100.00 for his “humiliation, emotional distress, and loss
of First Amendment rights.” Although a district court may
award compensatory damages to a successful § 1983
plaintiff, it may not award damages to account for “the
abstract value of a constitutional right.” Watseka, 796 F.2d
at 1558-59. Therefore, a district court may award the
plaintiff damages only if he can prove that the denial of his
constitutional rights resulted in an actual injury. See
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308
(1986); see also Wateska, 796 F.2d at 1558-59. The fact that the
“monetary value of the particular injury is difficult to
ascertain”—as is often the case when the injuries asserted
are humiliation, distress, and other harms associated with
the denial of a right—does not preclude an award of
damages. Wateska, 796 F.2d at 1558-59; see also Stachura,
477 U.S. at 307; Gilpin v. Am. Fed’n of State, County, and
Mun. Employees, AFL-CIO, 875 F.2d 1310, 1314 (7th Cir.
1989). But the plaintiff must nevertheless show that he
Nos. 07-1239 & 07-2623 23
actually suffered those injuries, and “[w]here no injury [is]
present, no ‘compensatory’ damages [may] be awarded.”
Stachura, 477 U.S. at 308; see also Carey v. Piphus, 435 U.S.
247, 264 (1978) (stating that “some actual, if intangible,
injury must be proved before compensatory damages
may be recovered”).
However, we cannot tell whether Horina suffered any
actual injury, much less the “humiliation, emotional
distress, and loss of First Amendment rights” he con-
tends to have suffered. Horina’s testimony before the
district court regarding the extent to which he was
forced to curtail his handbilling was unclear at best and
contradictory at worst, particularly when he admitted
that he continued to distribute his Gospel tracts in other
cities, and that he eventually resumed distributing his
tracts in Granite City without incident.
Moreover, the fact that Horina resumed distributing
his tracts in Granite City after a brief hiatus contradicts
his assertion that he suffered humiliation “from having to
conspicuously avoid being in Granite City for fear of
being ticketed and/or arrested.” And although Horina
claimed that he endured emotional distress from distribut-
ing his tracts in fear, he also acknowledged that his fear
subsided when the City’s Chief of Police stated in court
that he would not be cited for his activities. Based on this
record, we are unable to determine whether Horina
suffered “humiliation, emotional distress, and loss of
First Amendment rights,” nor can we ascertain whether
$2,100.00 represented adequate compensation for those
purported injuries. See Watseka, 796 F.2d at 1558-59 (affirm-
ing award of compensatory damages where plaintiff
sufficiently explained the “non-abstract” harms and
“specific injuries” it suffered from denial of First Amend-
24 Nos. 07-1239 & 07-2623
ment rights). As such, the award of damages cannot
stand. See Everaard v. Hartford Accident & Indem. Co., 842
F.2d 1186, 1193 (10th Cir. 1988) (reversing award of com-
pensatory damages where basis for award was unclear
from both record and district court’s decision).
On remand, Horina may be able to proffer something
more than vague testimony to clarify the injuries he
allegedly sustained. If not, the district court may be
unable to award him anything but nominal damages. See
Carey, 435 U.S. at 266 (stating that nominal damages are
available to prevailing § 1983 plaintiff when no actual
injury is proven).
C. The district court’s award of attorneys’ fees to Horina
Granite City also challenges the district court’s award
of $62,702.02 in attorneys’s fees and costs to Horina. But
we need not address the point because both parties have
agreed in their briefs that, if we were to reverse only the
district court’s judgment awarding compensatory damages,
the amount awarded to Horina for attorneys’ fees and
costs should be reduced by the amount incurred in connec-
tion with the bench trial on the issue of damages—
$19,080.00—so that Horina would be due $43,622.02. And
because we have reversed only the district court’s judg-
ment awarding compensatory damages, we will allow
the parties the benefit of their stipulation.
III. CONCLUSION
We AFFIRM the district court’s judgment that Ordinance
No. 7861 is unconstitutional. However, we REVERSE the
district court’s judgment awarding $2,772.00 in compensa-
Nos. 07-1239 & 07-2623 25
tory damages to Horina, and REMAND this case to allow the
district court to revisit the issue of damages. Finally,
consistent with the parties’ stipulation on appeal, we
ORDER the district court to reduce the attorneys’ fees
and costs due to Horina to $43,622.02.
MANION, Circuit Judge, concurring in part, dissenting
in part. The Granite City Ordinance allows for the distribu-
tion of handbills2 directly to people or to homes and
businesses which are currently occupied. It prohibits the
placing of handbills on parked vehicles and unoccupied
private premises. Clearly the Ordinance regulates speech,
but only the manner of speech. Thus, as the court con-
cludes, the Ordinance is properly reviewed as a time, place,
and manner regulation, and not a regulation of a forum.
Accordingly, I concur with the court’s well-reasoned
conclusion that the Ordinance does not regulate a non-
public forum. Rather, it requires a time, place and manner
analysis of any restriction on speech. For the reasons
explained below, I disagree with the court’s determina-
tion that the Ordinance is unconstitutional and conclude
that the Ordinance is a valid time, place and manner
2
“The term ‘handbill’ includes any leaflet, pamphlet, brochure,
notice, handout, circular, card, photograph, drawing or adver-
tisement, printed on paper or on cardboard.” Ordinance § 2(a).
26 Nos. 07-1239 & 07-2623
regulation of speech. No further evidence from the City
is needed to reach this conclusion. Because I believe the
Ordinance is valid, I would overturn the damage award
and award of attorneys’ fees as well.
Section 2(b) of the Ordinance provides that “[n]o person
shall deposit or throw any handbill in or upon any
vehicle.”3 Horina wishes to place handbills “on automo-
biles that are parked on public places” and claims Section
2(b) is unconstitutional. Appellee Br. at 6. Because the
Ordinance is a restriction on the manner of speech,4 to
survive constitutional scrutiny, the restriction must be
content-neutral and the regulation must (1) serve a sub-
stantial governmental interest; (2) be narrowly tailored
to advance that interest; and (3) leave open ample alter-
native channels of communication. See Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989); Weinberg v. City of Chi.,
310 F.3d 1029, 1036-37 (7th Cir. 2002).
It is undisputed that the Ordinance is content-neutral.
The Ordinance also serves a substantial governmental
interest. Specifically, as set out in the preamble, the Ordi-
3
Section 2(b) does not restrict traditional leafletting, which, as
the court notes, is the offering of written materials to individuals
in public places for their acceptance or rejection. Opinion at 9.
Rather, § 2(b) prohibits the leaving of handbills on automobiles;
with an automobile, the driver is unknown and the receptacle
is mobile and lacks the ability to accept or reject the handbill.
4
The Ordinance does not regulate the time of speech. Nor does
it regulate the place of speech. An automobile is not a place; it is
chattel (movable personal property). The street or parking lot
is a place, and that place is open to distribution when the
automobile is present and even after it is driven away. Thus,
only the manner of speech is regulated.
Nos. 07-1239 & 07-2623 27
nance was enacted to protect the City’s residents’ “desire
to be free from unwanted intrusion, trespass, harassment,
and litter.” The court concludes that “the prevention of
litter, intrusion, trespass, and harassment is a substantial
government interest that would justify a restriction on
handbilling,” Opinion at 14, but because “Granite City
failed to proffer any evidence showing that handbilling
caused litter, intrusion, trespass, or harassment in the
City,” the Ordinance is unconstitutional.5 Opinion at 15.
However, when evaluating the constitutionality of a
statute, “common sense must not be and should not be
suspended. . . .” Anderson v. Milwaukee County, 433 F.3d
975, 978 (7th Cir. 2006). Common sense dictates that the
Ordinance serves the interests noted. It would be the rare
driver indeed who has not experienced the intrusion of a
flyer placed under a car windshield and the annoyance
of removing the flyer, especially in inclement weather
or when the driver doesn’t notice it tucked under the
passenger side windshield wiper until after fastening
his seatbelt and starting his car. While the more thought-
ful drivers dispose of such flyers properly, common
sense tells us that at least some of the unwanted flyers
become litter, even without evidence from the City.
Our sister circuit found common sense enough to estab-
lish the City’s substantial governmental interest in
5
Because the district court requested that the City provide
evidence, the City could have provided a statement by a police
officer, street cleaner, or other witness with first hand knowl-
edge of what happens when flyers are placed on windshields
of parked cars. That would have at least eliminated one rea-
son for declaring the Ordinance unconstitutional. That, how-
ever, was not necessary in this case.
28 Nos. 07-1239 & 07-2623
Jobe v. City of Catlettsburg, 409 F.3d 261 (6th Cir. 2005),
which is directly on point. In Jobe, the plaintiff challenged
the City of Catlettsburg’s Ordinance which prohibited
individuals from placing leaflets on vehicles. In analyzing
this time, place and manner regulation, the Sixth Circuit
stated that “the ordinance advances two significant gov-
ernment interests: (1) It furthers the government’s inter-
est in prohibiting litter and visual blight; and (2) it
furthers individuals’ interests in having their private
property left alone by those who do not have permission
to use it.” Id. at 268. The court added: “Allowing individu-
als to decide for themselves how, when or whether their
private property is used . . . as a container for an advertise-
ment (e.g., placing a leaflet under the car wind-
shield wipers) is a legitimate, if not compelling govern-
ment interest.” Id. Significantly, the Sixth Circuit then
stated:
Nor does Catlettsburg stand alone in seeking to ad-
vance these government interests. That at least one
State (New York) and at least 38 other cities—from
Philadelphia and Atlanta to San Antonio and Port-
land (Oregon) to Mishawaka (Indiana) and Albany
(Georgia)—have passed similar laws suggests that the
policy behind them is premised on legitimate rather
than contrived police-power concerns. In view of the
common-sense explanations for these types of laws,
they do not invariably require proof that the problem
has occurred in the past (a daunting task in view of
the 1952 vintage of this law and the understandable
absence of information about why the law was
passed) or an elaborate study of their present-day
necessity (an equally daunting task in view of the
difficulty of showing the empirical necessity for a law
Nos. 07-1239 & 07-2623 29
that has been in place for more than 50 years). While
governments normally should be expected to weigh
the costs and benefits of regulating methods of speech
as well as the alternative to regulating speech at all
before enacting such laws, it hardly amounts to specu-
lation to conclude that the First Amendment costs of
this law are quite modest (given the inexpensive
alternatives available for distributing literature and
advertisements) and the police-power benefits of the
law are quite legitimate (given the private-property
and aesthetic interests advanced by the law). Nor, at
any rate, has [the plaintiff] presented any reason to
question the city’s theory that a ban on placing ad-
vertisements and posters on cars will further the
city’s interest in preventing littering on private prop-
erty and in preventing the use of private property for
purposes neither intended nor welcome by the owner.
Id. at 269 (internal citations and quotations omitted).
I would follow Jobe and hold that § 2(b) of the Ordinance
serves a substantial governmental interest and that no
specific evidence is needed to establish this conclusion.
Moreover, even if some evidence were needed to con-
firm the common sense conclusion that the Ordinance
addresses the need to prevent litter and to avoid unwanted
intrusions on private property, we have such evidence
in this case. Specifically, Nathan Lang testified during
the first preliminary injunction hearing that he did not like
literature placed under the windshield of his parked car,
and that after Horina placed Gospel tracts on Lang’s car
on two separate occasions, Lang confronted Horina and
asked him to stop placing the tracts on his car. When
Horina ignored Lang’s request and slid another Gospel
tract through Lang’s open window, the City charged
30 Nos. 07-1239 & 07-2623
Horina with trespass. The court claims the City’s reliance
on Lang’s testimony comes too late to carry the day.
Opinion at 15. But Lang testified during the first prelimi-
nary injunction hearing before the district court granted
Horina judgment on the pleadings, meaning that this
evidence was before the district court. It is true that the
City did not otherwise tee up this evidence for the dis-
trict court, but that is not surprising because Lang had
moved for judgment on the pleadings, and not summary
judgment. If, as the court concludes, the district court
may treat the motion as one for summary judgment
because the court had asked for additional evidence, the
district court should have considered all of the evi-
dence already before it.
The court also reasons that since “Horina was eventually
cited with trespassing on Lang’s car,” Lang’s testimony
“creates the distinct impression that a broad restriction
on handbilling is not needed to combat trespass when the
City already has enacted an ordinance that proscribes
trespass.” Opinion at 15-16. Contrary to the court’s reason-
ing, though, Lang’s testimony confirms the common-sense
understanding of the need for such an Ordinance to
prevent unwanted intrusion on private property. While
Horina was cited for trespassing, that was only possible
because Lang had previously witnessed Horina placing
flyers on his (Lang’s) car and had asked Horina to stop
doing so. Significantly, Lang was also physically present
at the time that Horina ignored his request and shoved a
third tract into Lang’s car. It was only because Lang was
able to see Horina placing flyers on his car that Lang
was able to ask him to stop, turning Horina’s future
behavior into a trespass. But Lang’s testimony confirms
that he did not like Horina leaving things on his car prior
Nos. 07-1239 & 07-2623 31
to the conduct which resulted in a trespass citation. While
a trespass ordinance can address the trespass, the City’s
handbill Ordinance addresses the leaving of pamphlets
in cases where motorists are not present to object and
identify the trespasser. (The flyer does not trespass, the
person does.) Therefore, even if some evidence were
needed to support the City’s position that the Ordinance
protects citizens’ “desire to be free from unwanted intru-
sion, trespass, harassment, and litter,” such evidence
existed in the form of Lang’s testimony.
I further conclude that § 2(b) is narrowly tailored to
address the governmental interests at stake. As the Sixth
Circuit concluded in Jobe, the ordinance “targeted the
precise problems—littering on private automobiles and
unauthorized use of private property—that it wished to
correct.” Id. at 270. So too here: The Granite City Ordinance
regulates precisely the conduct that causes the litter and
interferences with private property, namely the placing of
flyers on automobiles. Given this direct nexus between the
Ordinance and the governmental interest at stake,
I conclude that Ordinance 2(b) is narrowly tailored.6
6
The court concludes that Granite City has waived the issue of
whether the Ordinance is narrowly tailored. I disagree.
Throughout this appeal, Granite City argued that the Ordinance
is narrowly tailored to further substantial governmental
interests. See Granite City Br. at 19-21. Granite City also ex-
plained why the trespass and anti-littering ordinances
were insufficient to address the City’s legitimate concerns. See
Granite City Reply Br. at 11-12 (“Placing handbills on private
vehicles effectively transfers the responsibility to dispose of the
material (with the corresponding possibility of litter) to the
recipient. Furthermore, trespassing and litter ordinances
(continued...)
32 Nos. 07-1239 & 07-2623
Likewise, the Ordinance leaves open ample avenues of
speech—specifically, handbills may be handed to pedestri-
ans or motorists at the same time and same place, and also
may be distributed at occupied homes and businesses.
Again, I would follow the Sixth Circuit’s well-reasoned
opinion in Jobe:
[T]he ordinance leaves open ample alternative channels
of communication. Placed in the context of other
municipal laws enacted by the city, the ordinance
permits a wide range of leafletting activities.
Catlettsburg does not prohibit leafletting in its most
traditional sense-offering handbills to pedestrians
and giving them the choice to take the handbill or leave
it. It does not prohibit citizens from exercising their
right to distribute literature in the same place where
the ban on placing leaflets on car windshields exists-
namely, by waiting in a parking lot or on a street and
asking the owners of a car whether they would like a
leaflet or a sign for their car. . . . It does not prohibit
citizens from going door-to-door to talk to residents
about the message they wish to share and expressly
permits them to give homeowners a pamphlet if they
are handed in at the door. It does not prohibit citizens
from mailing information to residents. And it expressly
6
(...continued)
would do little to resolve the problem of the blight associated
with flyers or other materials being placed on every car on a
public street or parking lot. . . [T]he situation involving Lang
further establishes the need to protect vehicle owners from
receiving materials that are neither requested nor wanted.”)
Accordingly, Granite City did not waive the argument that the
Ordinance was narrowly tailored.
Nos. 07-1239 & 07-2623 33
allows citizens to leave leaflets and pamphlets at
private residences if they are “placed on a porch[ ] or
securely fastened to prevent [them] from being blown
or scattered about.” By any measure of alternative
channels of communication, the City of Catlettsburg
has given its citizens numerous ways to distribute
literature and information in an inexpensive, efficient
and productive manner.
Jobe, 409 F.3d at 270.
Similarly, in this case, Granite City does not prohibit
leafletting in the traditional sense of offering handbills
to pedestrians. Likewise, Granite City does not prevent
citizens from exercising their First Amendment rights at
the exact same time and in the exact same place as where
the ban of leafletting applies, by “waiting in a parking
lot or on a street and approaching the pedestrians or
motorists.” Id. Citizens may go from door-to-door in
Granite City to either talk to residents, hand them pam-
phlets, or leave them pamphlets, so long as the pamphlets
are secure. As Jobe held, these are more than adequate
alternatives to the leaving of handbills on automobiles,
and afford Horina (and others) “numerous ways to dis-
tribute literature and information in an inexpensive,
efficient and productive manner.” Id.The court also upholds the district court’s conclusion
that Section 2(c) of the Ordinance violates the First Amend-
ment. Section 2(c) provides: “No person shall deposit,
place, or throw any handbill upon any private premises
which are temporarily or continuously unoccupied.”
Horina claims that § 2(c) violates his First Amendment
rights because it prevents him from leaving information
at houses where no one is currently at home, i.e., the
residents are out to dinner, etc. The City responds that
34 Nos. 07-1239 & 07-2623
“temporarily or continuously unoccupied” should be given
its usual and customary meaning, which is “vacant house
or building,” and that a prohibition on leaving materials
at vacant homes is a valid time, place, and manner re-
striction. Appellant’s Reply Brief at 14-15. Reading the
phrase “temporarily or continuously unoccupied” as
“vacant” is consistent with the structure of the Ordinance,
as a whole. Specifically, § 2(d) of the ordinance provides:
[N]o person shall deposit or throw any handbill in or
upon any private premises which are occupied, except
by handing or transmitting any such handbill directly
to the occupant or other person then present in or
upon such private premises, or by placing or deposit-
ing such handbill so as to prevent it from being blown
or drifted about such premises. . . .
Section 2(d) confirms that the City’s position that “tempo-
rarily or continuously unoccupied” means vacant. Section
2(d) speaks of occupied homes as having residents who
may be “then present,” which indicates that the Ordinance
recognizes that at other times, the residents will not be
“present,” yet the home will nonetheless be considered
“occupied.” Section 2(d) allows individuals to leave
pamphlets at homes that are not vacant, so long as they are
secured from blowing away. Given this limited reading
of the Ordinance, I conclude that § 2(c) is also a valid time,
place and manner restriction because it prevents litter
which would result if materials were left at vacant homes.
Had § 2(c) prohibited the leaving of materials at homes
that were not vacant, I would find the restriction unconsti-
tutional, as homes are distinguishable from automobiles.
As the court explained in Jobe, 409 F.3d at 272:
In the setting of property that has a tradition of being
used to receive and initiate communications, it may
Nos. 07-1239 & 07-2623 35
make abundant sense under the First Amendment to
place the burden on the property owner to remove the
slot on the door, to remove the mailbox, to sign onto
a do-not-call or a do-not-spam list, or to place a
“No Solicitation” sign on the door. It would make
considerably less sense to put the vehicle owner to the
choice of accepting either a ridiculous requirement
(removing the windshield wipers) or an unorthodox
burden (Placing a “No Handbills, No Posters. . .” sign
on the dashboard).
I agree with Jobe’s rationale and likewise find the distinc-
tion between handbilling at homes and on cars significant.
Accordingly, if § 2(c) were read to prohibit the leaving
of handbills at occupied homes, I would join the court in
its conclusion that such a restriction is unconstitutional.
For these reasons, I would reverse the judgment of the
district court declaring the Ordinance unconstitutional.
Because I would reverse the district court’s decision on the
merits, I would also reverse the damage award and the
award of attorney’s fees.
8-7-08