Two York County newspapers have filed a federal lawsuit against the city of Biddeford, saying an ordinance aimed at curbing deliveries of free, unsolicited papers violates the U.S. and Maine constitutions.
The companies that publish the Journal Tribune and Biddeford-Saco-OOB Courier say an ordinance adopted last year — an effort to reduce litter complaints — is unconstitutional because it denies freedom of the press and free speech and imposes restrictions greater than necessary, according to a lawsuit filed Feb. 16 in U.S. District Court in Portland.
A New England nonprofit organization that advocates for freedom of the press also has called on Biddeford to scrap or alter the ordinance because of concerns it violates the First Amendment.
The Courier, a weekly newspaper delivered on Thursday, has for years generated complaints from residents upset by piles of unwanted newspapers collecting on their streets and sidewalks, in some cases getting buried in snow and damaging snowblowers. The Journal Tribune for several years has delivered a free Sunday edition that has prompted similar complaints, according to city officials.
“We’ve had this problem since last century,” Councilor Marc Lessard said before the September vote to implement the ordinance.
Lessard, who refers to the unsolicited papers as litter, said he understood the concerns of residents because his own snowblower has been damaged by a free paper four different times.
“I ended up shoveling three driveways because I didn’t have my snowblower,” he said.
The ordinance requires any person or business that distributes or delivers unsolicited print or other written material more than twice a year to obtain an annual $100 license from the city clerk.
It also created an opt-out list of residents who do not want the papers delivered to their homes. The list is maintained by the city and prohibits anyone from delivering unsolicited items to those addresses.
Individuals or businesses that do not honor the opt-out list and do not pick up uncollected papers or materials within 72 hours could lose their license from the city and face a fine from $100 to $2,500 per violation.
Both newspapers allow residents to opt out of delivery by contacting their offices and they send out employees to retrieve newspapers that are not picked up after delivery, according to the lawsuit. The newspapers also reimburse residents whose snowblowers have been damaged.
The newspapers say if delivery is eliminated or substantially curtailed, their capacity to generate advertising revenue to support the papers would be diminished and could make them not financially viable.
The lawsuit alleges the ordinance “is an irrational and unreasonable statute, imposing unjustifiable restrictions on the exercises of protected constitutional rights.” The newspapers are seeking a preliminary and permanent injunction preventing the city from enforcing the ordinance.
City Manager James Bennett said Tuesday he could not comment because the city had not been served with the lawsuit. James Haddow, the attorney for the newspapers, and Journal Tribune publisher Devin Hamilton also declined to comment. David Clark, general manager of Mainely Media, which publishes the Biddeford-Saco-OOB Courier, could not be reached Tuesday.
Nashwa Gewaily, a media and First Amendment attorney for the Massachusetts-based New England First Amendment Coalition, said the organization is “deeply troubled” by the ordinance and encouraged the city to rescind or substantially modify it.
“Biddeford does a disservice to newspapers, donor-supported charities, and community organizations in equating all freely delivered printed or written material with unsightly debris that ought to be promptly discarded,” Gewaily wrote in an Oct. 17 letter to city officials.
“More harmfully, it does so with regulations too burdensome and unreasonable to effectuate its purpose in a way that would pass constitutional review.”
The question of whether pamphlets or newspapers left on personal property are litter or literature has been argued for centuries in the United States, including in U.S. courts.
Gewaily cited a 1998 Illinois court ruling that invalidated an anti-littering, press-implicating rule and said “tossing a newspaper onto a private yard is different than tossing a discarded hamburger wrapper onto that yard.”
The letter from the coalition also said the financial burden placed on media organization and individuals is “exorbitant and excessively punitive.”
Similar arguments have been made around the country, and in Maine.
In 2014, the Saco City Council decided not to proceed with a proposal that would have prohibited newspaper companies from dropping off free papers on driveways and city sidewalks because of concerns such an ordinance would be unconstitutional. That proposal was also generated by concerns about free newspapers that sat uncollected in driveways and roads long after they were delivered.
The new Biddeford rules are “intended to ensure and protect the privacy rights of Biddeford residents and property owners on their private property and to deter the accumulation of unsolicited printed or written materials that might signal that a house is unoccupied,” according to the ordinance.
During a brief discussion of the ordinance in September, councilors referenced longstanding frustration with the unsolicited newspapers and the challenge of crafting an ordinance that does not infringe on free speech.
No member of the public spoke about the proposed ordinance at the time. It was supported unanimously by the council despite a letter from Hamilton and Clark outlining their opposition to the proposal, their companies’ ongoing efforts to recover uncollected papers and their willingness to work with city officials to address the issue.
City Council President John McCurry said during the Sept. 19 council meeting he hoped the ordinance would “stand up in court” because previous attempts to address the issue ran into freedom of speech concerns.
“We worked very closely with (city) attorney (Keith) Jacques, who did a lot of work on this to ensure we are within our legal bounds and able to produce an ordinance that works,” said Councilor Laura Seaver.