The Volokh Conspiracy
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Court Overturns Littering Conviction for Leaving Bags with Messages on Neighbors' Lawns in Response to Their Political Signs
"[A]ll the residences where he left materials had political signage in their yards and none of them had no trespassing signs posted. Thus, their consent to receive literature is 'implied from community custom and tradition.'"
From State v. Dolcini, decided Monday by the Ohio Court of Appeals (opinion by Judge Jennifer Hensal, joined by Judges Scot Stevenson and Jill Flagg Lanzinger; for the factual backstory, see "85-year-old Hinckley man convicted twice for littering on Trump-supported neighbors" [WKYC, Phil Trexler & Marisa Saenz]):
Mr. Dolcini repeatedly placed paper material in the yards of two of his neighbors in response to political signs they displayed. The material was in bags that contained newspaper clippings, magazine articles, mail Mr. Dolcini had received, pamphlets, and other paper material. Mr. Dolcini had cut his address out of any of the mail, but the post office was able to use other identifying information on the pieces to determine they had been delivered to him. According to Mr. Dolcini, he delivered the material to promote the discussion of environmental issues. He removed his name because he did not want his mailbox to be blown up by an explosive, as had happened to another resident of his township.
Dolcini was convicted of littering, and sentenced to "30 hours of community service and … a $150 fine." Unconstitutional, the court held:
"Although a municipality may enact regulations in the interest of the public safety, health, welfare or convenience, these may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate information or opinion." Schneider v. State (1939) [a case involving the hand-to-hand distribution of leaflets -EV]. In Schneider, the United States Supreme Court noted that pamphlets "have proved most effective instruments in the dissemination of opinion." It also noted that "perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people." This Court has also recognized that "[t]he right to distribute, circulate, or otherwise disseminate ideas and written materials has long been recognized as constituting an integral part of the right of free speech."
In Martin v. City of Struthers (1943) [a case involving door-to-door canvassing -EV], the Supreme Court explained that the "[f]reedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved." Surveying the then-existing trespassing laws, the Court noted that those laws required a warning by a property owner to others to keep off the premises. It also noted the importance of leaving "the decision as to whether distributers of literature may lawfully call at a home where it belongs-with the homeowner himself."
According to Mr. Dolcini's affidavit, all the residences where he left materials had political signage in their yards and none of them had no trespassing signs posted. Thus, their consent to receive literature is "implied from community custom and tradition." Mr. Dolcini also indicated that he placed the reading material in waterproof bags that he bound with a rubber band and that he placed the bags near the homeowners' mailboxes.
Upon review of the record, we conclude that, under the uncontested facts that were listed in Mr. Dolcini's affidavit, Mr. Dolcini's delivery of political and other literature to his neighbors was protected speech under the First Amendment….
Alan Medvick represents Dolcini.
