First Amendment Right to Trespass?

The Seattle Times reports on a recent decision by the 9th U.S. Circuit Court of Appeals that a Seattle city ordinance violates the free speech rights of the publishers of yellow pages phone books.  The ordinance created an opt-out registry that permits city residents to opt out of having phone books dumped on their porch.  The phone book companies went to court to fight for the right to continue to go onto other people's private property and dump unwanted phone books.  The Court of Appeals ruled in favor of the trespassers, finding that such conduct is protected by the First Amendment.

Why do phone book companies want to go to the expense of printing and delivering phone books to people who don't want them, you might ask.  The article does not address this, but my guess is that it because the ad reps need to be able to brag to potential suckers clients that x-number of phone books get distributed each year and therefore their ads will be seen by x-number of people.  The phone book companies couldn't care less whether the phone books are ever opened, so long as they get "distributed."

Bartlesville's local newspaper, the Examiner-Enterprise, puts out a free edition called the Hometown Shopper.  It contains a few news articles from the regular edition, but is mostly stuffed with ads and circulars.  One copy of each edition of the Shopper gets tossed into the yard of every residence in town.  People learned long ago that the paper contains nothing but junk, so no one other than deranged hermits and OCD paper-stackers ever bother to remove the rubber-band.  The papers go straight from the yard to the trash bin.

Actually, that's the best case scenario.  Often, the Shoppers don't even get picked up, so they lay where they were tossed for weeks and months, slowly rotting away, until they get sucked into a mower and become Shopper confetti.  I've seen yards with as many as seven Shoppers.  You might think that the litterer paper-boy would notice this accumulating pile of rolled-up sog-logs and conclude, "These people must not want their free Shopper.  Maybe I should stop delivering them."  But no.  For the same reason that phone books will continue to be delivered in Seattle, the Shopper will continue to be delivered in Bartlesville -- the number of monthly deliveries, not readership, is what counts.

The Examiner-Enterprise has a "Readers' Roundtable" on its editorial page and claims to publish all letters received from readers.  I put this boast to the test by writing a letter to the editor, complaining of the Shoppers that are littering our streets and yards, becoming a general nuisance to our community.  I advised any potential advertisers to not fall for any sales pitch from the ad reps talking about how many copies of each issue of the Shopper get delivered each month, but to look around and see how many are unopened and rotting.  Guess what?  The newspaper decided to make an exception to their policy of publishing all letters.  Mine never appeared.  Despite my request that the Shopper no longer be tossed into my yard, the litter continues.

I have been tempted to file a police report, but now it seems that the law is on the side of the litter-bugs, at least according to the Court of Appeals.  I could not find the decision to read for myself, so I do not know the reasoning of the majority, but I doubt that I will ever be convinced that a private business or anyone else has a First Amendment right to come onto my property to give me something I've told them I don't want.  Can I now toss my garbage (which will no doubt include water-soaked Shoppers) in the yard of the publisher of the Examiner-Enterprise and call it freedom of expression?  Many municipalities have ordinances that ban door-to-door salesmen.  Isn't that also free speech?  Some municipalities, including Seattle, I believe, have ordinances that prohibit vegetable gardens in front yards.  Someone please explain to me how a city can tell me I can't grow tomatoes in my yard, but that same city can't prevent other people from littering my yard with advertising circulars?