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City of Watseka v. Illinois Public Action Council and American Civil Liberties Union

decided: July 18, 1986.

CITY OF WATSEKA, COUNTY OF IROQUOIS AND STATE OF ILLINOIS, A HOME RULE MUNICIPALITY, AND ERNEST A. GROVE, MAYOR OF WATSEKA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, PLAINTIFFS-APPELLANTS,
v.
ILLINOIS PUBLIC ACTION COUNCIL AND AMERICAN CIVIL LIBERTIES UNION, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Central District of Illinois, Danville Division. No. 82 C 2347 - Harold A. Baker, Judge.

Author: Wood

Before WOOD, JR., and COFFEY, Circuit Judges, and GRANT , Senior District Judge.*fn*

WOOD, Jr., Circuit Judge. The City of Watseka passed a solicitation ordinance which, among other provisions, limited door-to-door soliciting to the hours between 9:00 a.m. and 5:00 p.m., Monday through Saturday. The Illinois Public Action Council, whose activities the new ordinance affected, advised the city that it believed the ordinance violated the First and Fourteenth Amendments of the United States Constitution. The city filed this action seeking a declaratory judgment that the ordinance was constitutional. The district court held that the ordinance violated the First Amendment. We affirm.

I. FACTS*fn1

On October 15, 1979, the City of Watseka, Illinois ("Watseka") adopted the controversial ordinance regulating soliciting in the village. According to the ordinance preamble, Watseka adopted the solicitation regulation in response to numerous complaints from Watseka residents about solicitors or persons claiming to be solicitors making "nuisances of themselves by disturbing and annoying the occupants, or by their acts and conduct have violated the right of the occupants to the quiet and peaceful enjoyment and security of their homes, and in some cases persons have sought admittance to a residence as a solicitor for the purpose of gaining information for some illegal purpose or to commit an illegal act."*fn2 The ordinance defined soliciting*fn3 and required all solicitors to register with the city clerk, who was directed to issue Certificates of Registration to all applicants except persons who had been convicted of a felony within five years of the date of the application for the Certificate of Registration, applicants who had been convicted of a violation of the solicitation ordinance, or any person whose Certificate of Registration had previously been revoked.*fn4 The ordinance further provided that residents could forbid solicitation at their residences by posting a sign.*fn5 The ordinance made it unlawful to solicit "prior to 9:00 o-clock A.M. or after 5:00 o-clock P.M. of any weekday, or at anytime on a Sunday or on a state or national holiday."*fn6

On March 18, 1981, a representative of the Illinois Public Action Council ("IPAC") requested permission from Watseka to conduct a door-to-door political canvass from June 1 to July 31, 1981, between the hours of 4:00 p.m. and 9:00 p.m. IPAC is a not-for-profit Illinois corporation representing low and moderate income persons before Congress and the Illinois Legislature. IPAC canvasses to obtain new members, to educate the public, and to identify voters who will support its positions on issues of utility, energy, and tax policy and economic development. The mayor, Ernest Grove, replied in a letter dated March 20, 1981, the IPAC would be required to restrict its activities to the hours between 9:00 a.m. and 5:00 p.m. in accordance with the ordinance. IPAC informed the mayor that its normal working hours are 4:00 p.m. to 9:00 p.m., Monday through Friday, because IPAC found that more people were home during this period. Furthermore, IPAC advised Watseka that it believed that the First and Fourteenth Amendments of the United States Constitution protected IPAC's right to canvass, and that Watseka's restriction on the hours of solicitation violated IPAC's right. Watseka notified IPAC that it must comply with the city's ordinance regulating soliciting or run the risk of prosecution. On August 31, 1982, an attorney from the American Civil Liberties Union ("ACLU") representing IPAC informed Watseka of his opinion that the time limitation in the city's solicitation ordinance was unconstitutional.

On August 8, 1982, Watseka filed a complaint in Illinois state court seeking a declaratory judgment as to the constitutionality of the provision regulating hours of solicitation. IPAC and the ACLU, the named defendants,*fn7 moved to have the case removed to federal court. Following removal, the defendants filed an answer asserting, inter alia, that their activities did not fall within the definition of soliciting in the ordinance*fn8 and that the ordinance violated IPAC's First Amendment rights. The defendants also filed a Fed. R. Civ. P. 12(b) counterclaim requesting declaratory, injunctive, and monetary relief. The defendants claimed that the ordinance was unconstitutionally vague and overbroad and an impermissible restriction on speech. Both parties filed motions for summary judgment supported by affidavits.

In its motion, IPAC again contended that the ordinance was an unconstitutional abridgment of IPAC's First Amendment right to freedom of speech. In support of this contention, IPAC submitted affidavits stating that its activities included canvassing to obtain new members and citizen support for issues, mobilizing letter writing and other means of communication with public officials, and arranging public education programs. Additionally, an IPAC solicitor stated in his affidavit that, "in my four years of canvassing experience, I have found it an unvarying rule that the number of citizens contacted increases with each hour of canvassing in a normal workday, i.e., from 4 p.m. to 9 p.m."

Citing Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980), and Association of Community Organizations for Reform Now v. City of Frontenac, 714 F.2d 813 (8th Cir. 1983), the district court found that, "IPAC's canvassing and solicitation activities are clearly protected by the First Amendment to the United States Constitution," and although "Watseka has the power to regulate the activities of canvassers and solicitors if the regulation is in furtherance of a legitimate governmental objective, " the regulation of canvassing and soliciting must be undertaken "with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech-seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease." The district court determined that the city bore the burden of establishing the statute's constitutionality because it allegedly infringed on the exercise of First Amendment rights. Relying on Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981), the district court determined that, "the validity of regulation which infringes upon the exercise of First Amendment Freedoms will be sustained, 'only if the regulation is narrowly drawn to further a legitimate governmental objective unrelated to the restriction of communication, and if it does not unduly intrude upon the exercise of First Amendment rights.'" The district court found that there were less restrictive alternatives available to Watseka to protect its citizens from unwanted canvasses.

II. THE FIRST AMENDMENT AND DOOR-TO-DOOR SOLICITATION

The Supreme Court has recognized substantial First Amendment protection for door-to-door solicitors. See Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248, 1251 (7th Cir. 1985) (cataloguing Supreme Court cases).*fn9 Simultaneously, the Court has recognized the right and power of a municipality to regulate solicitation, so long as the regulation is in furtherance of a legitimate governmental objective. See, e.g., Heffron, 452 U.S. at 647-48; see also Kenosha, 767 F.2d at 1251 (listing other Supreme Court cases). One such legitimate municipal objective is protecting the privacy of its citizens, including the quiet enjoyment of their homes. Kenosha, 767 F.2d at 1251-52 ("peace and quiet in the home in the evening is a significant and commendable municipal objective deserving of every protection by constitutional means"); see also Carey v. Brown, 447 U.S. 455, 471, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980) (a municipality's "interest in protecting the well-being, tranquility and privacy of the home is certainly of the highest order in a free and civilized society"). Another legitimate municipal objective which will justify a properly drawn solicitation ordinance is the prevention of crime. Kenosha, 767 F.2d at 1252 n.2. Watseka intended its ordinance to advance both of these objectives. Although we conclude that Watseka constitutionally overreached, its good intentions are apparent and understandable.

It is therefore clear that IPAC has some First Amendment protection for its solicitation and Watseka has some power to regulate solicitation in furtherance of its objectives of protecting its citizens' privacy and preventing crime. The issue we must decide is whether Watseka's ban on solicitation from 5 p.m. to 9 p.m.*fn10 Monday through Saturday is consistent with the First Amendment. Watseka, as the proponent of an ordinance that allegedly infringes upon IPAC's First Amendment rights, has the burden of establishing that the statute is constitutional. Kenosha, 767 F.2d at 1252 (listing Supreme Court precedent).

A. Standard of Review

The Supreme Court has never clearly articulated the proper legal standard for reviewing an ordinance placing time restrictions on solicitation. We acknowledged, but did not find it necessary to resolve, this issue in Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248, 1252-57 (7th Cir. 1985) (discussing the Supreme Court's consideration of time, place, and manner restrictions in Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 636-37, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 82 L. Ed. 2d 221, 104 S. Ct. 3065, 52 U.S.L.W. 4986, 4987-89 (U.S. June 29, 1984); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804-12, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984); Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 81 L. Ed. 2d 786, 104 S. Ct. 2839, 52 U.S.L.W. 4875, 4878-81 (U.S. June 26, 1984)). In Kenosha, we invalidated a city ordinance prohibiting charitable, religious, and political solicitation between 8:00 p.m. and 8:00 a.m.*fn11 In so doing, we acknowledged the split in circuits between the Third Circuit standard, see Pennsylvania Alliance for Jobs & Energy v. Council of Munhall, 743 F.2d 182, 185 (3d Cir. 1984) ("ample alternative channels of communication" standard) and the Eighth Circuit standard, see Association of Community Organizations for Reform Now v. City of Frontenac, 714 F.2d 813, 818-19 (8th Cir. 1983) ("less restrictive means" standard); see also New York City Unemployed & Welfare Council v. Brezenoff, 677 F.2d 232, 237-39 (2d Cir. 1982) (least restrictive means); New York Community Action Network, Inc. v. Town of Hempstead, 601 F. Supp. 1066, 1070 (E.D.N.Y. 1984) (interpreting Brezenoff); West Virginia Citizens Action Group, Inc. v. Daley, 324 S.E.2d 713, 721-25 (W. Va. 1984) (resolving the split in favor of Frontenac standard). Although we expressed some preference for the Eighth Circuit approach in Kenosha, 767 F.2d at 1254-57, the statute in Kenosha failed both standards and thus it was not necessary for us to choose between the two. Id. at 1254.

Before considering the standard to be adopted, we note that, contrary to assertions by IPAC, the outcome of this case is not controlled by Kenosha. Numerous factual differences make this a more difficult case than Kenosha. For example, in Kenosha we pointed out that the city presented only the affidavit of the city attorney in support of its motion for summary judgment. 767 F.2d at 1250. We noted that "the City's failure to present any evidence other than this affidavit in support of the ordinance severely impairs its position. Perhaps a stronger offer of evidence by the City could have produced a different result." Id. Watseka clearly made a better showing than Kenosha, offering multiple affidavits and statistics in support of its motion, as well as a prevention of crime rationale not asserted by Kenosha. See id. at 1252 n.2 The outcome of this case is therefore not controlled by Kenosha, although our decision is greatly aided by Kenosha's analysis.

We now find it appropriate to make the step which we discussed but stopped short of taking in Kenosha, i.e., determining the appropriate standard. Both the Third Circuit ample-alternative-channels-of-communication standard and the Eighth Circuit less-restrictive-means standard are thoughtful attempts to distill a consistent analysis from the various Supreme court cases that have considered time, place, and manner restrictions. Guided by these two approaches, and having the benefit of the recent Supreme Court decision in City of Renton v. Playtime Theatres, 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925, 54 U.S.L.W. 4160 (U.S. Feb. 25, 1986), we see a four-part test developing. To sustain a time, place, and manner restriction on First Amendment activities, the government must show that the restriction (1) is content-neutral, (2) serves a legitimate governmental objective, (3) leaves open ample alternative channels of communication, and (4) is narrowly tailored to serve the governmental objective.*fn12

The Supreme Court has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment. See Renton, 54 U.S.L.W. at 4161-62; Heffron, 452 U.S. at 648; Carey, 447 U.S. at 462-63 & n.7; Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 98-99, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972). For example, in the recent case of Regan v. Time, Inc., 468 U.S. 641, 82 L. Ed. 2d 487, 104 S. Ct. 3262, 52 U.S.L.W. 5084 (1984), the Court struck down a statute regulating the photographing of currency because the statute impermissibly discriminated on the basis of content. Id. at 5086-87 (statute permitted only "philatelic, numismatic, educational, historical, or newsworthy" photographs).

It is well-established that a content-neutral regulation that infringes upon speech protected by the First Amendment must be designed to serve a legitimate governmental objective. See Renton, 54 U.S.L.W. at 4161-62; Clark, 52 U.S.L.W. at 4987; Heffron, 452 U.S. at 649. Furthermore, the regulation must leave open ample alternative channels of communication. See Renton, 54 U.S.L.W. at 4161-62; Clark, 52 U.S.L.W. at 4987; Heffron, 452 U.S. at 648. So long as the amount of speech left open is ample, it is not fatal that the regulation diminishes the total quantity of speech. See Vincent, 466 U.S. at 803 n.23 (Court upheld ordinance despite "assuming that the ordinance diminishes the total quantity of . . . speech").

The Seventh Circuit has applied the ample alternative channels of communication standard stringently - we have required the government to that the alternatives to the prohibited activities are ample and adequate." See Kenosha, 767 F.2d at 1256 (criticizing the Third Circuit in Marshall for not adequately scrutinizing alleged alternatives). This is consistent with the approach taken by the Supreme Court in Vincent, where the Court looked at the adequacy of the alternative channels, noting that the appellees failed to show "that the posting of political posters on public property is a uniquely valuable or important mode of communication, or that appellees' ability to communicate effectively is threatened by ever-increasing restrictions on expression." 466 U.S. at 812 (emphasis added).

The Supreme Court does not always spell out the "narrowly tailored" step as part of its standard for evaluating time, place, and manner restrictions. See, e.g., Renton, 54 U.S.L.W. at 4162 ("the appropriate inquiry . . . is whether the . . . ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication"). Nevertheless, the Court has included this as part of its analysis in many cases. For example, in Renton Justice Rehnquist noted that "the Renton ordinance is 'narrowly tailored' to affect only that category of theaters shown to produce the unwanted secondary effects, thus avoiding the flaw that proved fatal to the regulations in Schad v. Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981), and Erznoznik v. City of Jacksonville, 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975)." 54 U.S.L.W. at 4163. See also Clark, 52 U.S.L.W. at 4988 ("the regulation narrowly focuses on the Government's substantial interest"); Vincent, 466 U.S. at 808 ("incidental restriction on expression" must be "narrowly tailored to serve [the government's legitimate] interest"); Schad, 452 U.S. at 68-71; Grayned v. City of Rockford, 408 U.S. 104, 116-17, 33 L. Ed. 2d 222, 92 S. Ct. 2294 ; Mosley, 408 U.S. at 98-99. Because the Third Circuit standard in Munhall does not give sufficient weight to this element of the Supreme Court's analysis, that approach is incomplete. The Eighth Circuit's standard in Frontenac, the so-called less-restrictive-means standard, we consider to be more faithful to the Supreme Court's approach.

As we pointed out in Kenosha, if there is a less restrictive alternative to a challenged regulation, then the ordinance is not as precise and narrowly drawn as it could be, and the regulation unnecessarily interferes with First Amendment rights. 767 F.2d at 1255; see also Daley, 324 S.E.2d at 724-25 ("Whether explicitly or implicitly, less restrictive alternatives must be considered in order to determine whether the challenged regulation is sufficiently narrow so as not to prohibit that which should be protected."). The Supreme Court has both emphasized the need for precision in the regulation of the exercise of First Amendment rights, see, e.g., Vincent, 466 U.S. at 801 ("the application of the ordinance in this case responds precisely to the substantive problem with legitimately concerns the City"), see also Kenosha, 767 F.2d at 1255 (listing other Supreme Court precedent), and considered the possibility of less restrictive means in analyzing particular solicitation regulations, see, e.g., Heffron, 452 U.S. at 654 (less restrictive alternative inadequate to advance government's interest); Schaumburg, 444 U.S. at 635-39 (the government's "legitimate interest . . . can be better served by measures less intrusive than a direct prohibition on solicitation"). In Vincent, the Supreme Court reiterated that government regulations affecting First Amendment rights are justified "if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of [the government's legitimate] interest." 466 U.S. at 805 (quoting United States v. O'Brien, 391 U.S. 367, 377, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968)). We therefore conclude that the Supreme Court, when analyzing whether a regulation is narrowly tailored, requires the government to show both that there is a significant relationship between the regulation and the governmental interest, see Kenosha, 767 F.2d at 1257 ("actual connection between the restriction and the served interest"), and that less restrictive alternatives are inadequate to protect the governmental interest.*fn13 To the extent that the Eighth Circuit less-restrictive-means standard accurately addresses all the concerns raised by the Supreme Court in the cases discussed above, we favor that standard over the less inclusive Third Circuit standard.

B. Watseka's Ordinance

Having set out the standard we will apply, we turn to Watseka's ordinance. Watseka easily satisfied the first two parts. IPAC does not claim that Watseka's ordinance is not content-neutral. We have already noted that the protection of its citizens' peace and quite enjoyment of their homes, as well as the prevention of crime, are obviously legitimate municipal objectives. The remaining issues are (1) whether the Watseka ordinance leaves open ample alternative channels of communication and (2) whether the ordinance is narrowly tailored to serve Watseka's legitimate objectives.

The Watseka ordinance was a comprehensive attempt by the city to deal with the problems which the city perceived as arising from door-to-door solicitation. In addition to forbidding all solicitation except between the hours of 9 a.m. and 5 p.m. on Monday through Saturday, the ordinance also required all solicitors to register with the city clerk, who would issue Certificates of Registration. The ordinance also provided that citizens could forbid solicitation at their residences by posting a sign.

In its motion for summary judgment, Watseka explained that it passed the statute because of citizen complaints that solicitors, specifically solicitors calling at hours other than 9 a.m. to 5 p.m. violated the quite and peace of the citizens' homes. Watseka also claimed that solicitors had sought admittance to residences at hours other than 9 a.m. to 5 p.m. "for illegal purposes or acts." Watseka contended that a substantial number of its work-force citizens were unavailable to be contacted between 6 p.m. and 9 p.m. and that a substantial number of the residents home in the evening were elderly and feared evening crime. Watseka also alleged that crime is more prevalent after 5 p.m. Finally, Watseka contended that solicitors coming door-to-door after 5 p.m. disturbed the enjoyment of Watseka residents' dinner hour.

To support its contentions, Watseka submitted a copy of the ordinance and several affidavits. The preamble to the ordinance states, in conclusory terms, that the city council had received complaints about solicitors and found it necessary to pass the ordinance.*fn14 In the affidavit of Mayor Ernest A. Grove, the mayor alleged that he was aware of problems with solicitors, in particular solicitors who operated at night when the city offices were closed so that the solicitors could fraudulently take orders and collect payments for nonexistent products. Mayor Grove and Mary Mull, who oversaw the Watseka Senior Citizens Center, asserted that Watseka has a large number of senior citizens, many of whom live alone. Both testified that several senior citizens (who were not identified) had expressed fear over strangers coming to their doors at night. Watseka presented the affidavits of three people involved in law enforcement, including the retired Watseka police chief, testifying that the incidence of crime is greater after dark. Watseka's final affidavit came from an officer of the Watseka Chamber of Commerce and asserted that the major employers in the Watseka area used three shifts for around-the-clock employment.*fn15

Against this background we must determine whether Watseka's ordinance is narrowly tailored to serve Watseka's legitimate interests in protecting the privacy of its citizens, including the quiet enjoyment of their homes, and preventing crime. To be more specific, we must examine the incremental increase in the restriction of IPAC's First Amendment rights attributable to Watseka's ban on all solicitation after 5 p.m. to see whether there is a significant relationship between that particular restriction, in light of the other safeguards in the statute, and Watseka's interests.

First, we examine whether the nighttime ban was sufficiently connected to Watseka's interest in preventing crime. Most of Watseka's evidence on the incidence of crime concerned crime after dark, not crime between 5 p.m. and 9 p.m.*fn16 Watseka did not (and could not) argue that 5 p.m. is synonymous with darkness year-round.*fn17 During much of the spring, summer, and fall months, in view of daylight savings time, there are hours of daylight remaining after 5 p.m. available for sports, gardening, and numerous other outdoor activities, which is one of the purposes of daylight savings time. Although Watseka presented statistics of day crime rates and night crime rates, all statistics are statewide, and Watseka failed to present any evidence of its crime rate (or whether its nighttime crime rate went down during the three years the ordinance was in effect). Watseka failed to offer any evidence of its crime rate between 5 p.m. and 9 p.m. Watseka failed to in any link the evidence on nighttime crime to solicitation (i.e., there is no evidence either of any crime being perpetrated by alleged solicitors or of differences in crime rates when no solicitation takes place). Finally, Watseka failed to offer any evidence to substantiate its claim that the ordinance lessened the burden on its police force which it claimed unregulated soliciting caused. Watseka failed to offer any explanation why the people who came within the ordinance's definition of soliciting posed any greater burden on the police, or threat of crime, than the numerous other visiting strangers that the ordinance did not purport to cover. Someone with an illegitimate intent has options besides posing as a solicitor. Common ones, for example, are the pretense of looking for someone at the wrong address, the need for emergency use of the telephone, or a claim that entrance is needed to check for gas leaks, and so forth. Unfortunately, for the devious there is not shortage of opportunities.

Watseka also failed to back up its assertion that the ordinance prevented fraud and embezzlement. The only evidence Watseka presented was Mayor Grove's bare assertion that "it has been commonplace, from time to time, for persons purporting to be solicitors to call at residences after dark, purport to make installment sales of merchandise or services, take a substantial down payment, and then disappear from the community without later providing the product or service purchased." Such a conclusory assertion by an interested party, particularly when unsupported by any statistics or firsthand knowledge of any actual crimes, lends little if any support to Watseka's claim. Watseka's concern with fraud is not due to solicitation by legitimate organizations such as IPAC. It also implies that many residents of Watseka are easily duped, which we consider to be an exaggeration. Darkness can have little to do with the fraudulent sale of merchandise. Watseka fails to offer any evidence that such crime is more prevalent after 5 p.m. The general state-wide evidence of evening crime which Watseka presented concerned crimes such as rape and robbery, not fraud and embezzlement. We thus find no evidence of a relationship between Watseka's prevention of crime objective and the 5 p.m. to 9 p.m. ban on solicitation. Therefore, the ordinance is not narrowly tailored to achieve Watseka's legitimate interest in preventing crime.

Likewise, Watseka fails to prove a significant relationship between protecting the quiet enjoyment and peace of its residents and the 5 p.m. to 9 p.m. ban. Another provision of the ordinance allows Watseka residents to protect themselves from all solicitors at all times simply by posting signs. The 5 p.m. to 9 p.m. ban is essentially an attempt by Watseka to substitute its judgment for that of its citizens. In Citizens for a Better Environment v. Village of Olympia Fields, 511 F. Supp. 104 (N.D. Ill. 1980), Judge Marovitz said:

To support the restrictions on this ground [of annoyance] is to derogate the First Amendment rights of plaintiffs and those of defendants' residents who would be willing recipients of plaintiffs' message during the evening hours to the nuisance concerns of those of their residents who would not be willing listeners during those hours, when the wishes of both groups can be easily accommodated.

Id. at 107. Watseka is attempting to roll up the front sidewalks of all its citizens at a very early hour. Even Girl Scouts will have a difficult time selling their cookies by 5 p.m. In a general way, the homeowner grants permission to the public, for appropriate purposes, to enter the homeowner's property at reasonable times and walk to the owner's front door and ring the bell that is there for that purpose. The resident then can make his or her own decision about whether or not to receive the caller.*fn18

As we pointed out above, Watseka has already provided unwilling listeners with a mechanism to ban all solicitors from their property at any time the listeners desire. A resident who does not want to be disturbed during dinner but is willing to talk to canvassers thereafter can post the sign during dinner and take it down once the table is cleared. Watseka can prosecute any solicitor who disturbs a resident posting a no solicitation sign. The only additional effect of the citywide 5 p.m. to 9 p.m. ban is to deprive willing listeners of the canvassers' message. This is inconsistent with Watseka's declared policy in the ordinance that "the occupant or occupants of the residences in this City shall make the determination of whether solicitors shall be, or shall not be, invited to their respective residences." § 19-5. The ban is not sufficiently related to Watseka's legitimate objective of protecting its citizens' peace and quiet enjoyment of their homes. Because the 5 p.m. to 9 p.m. ban is not narrowly tailored to serve Watseka's legitimate interests, it is not a valid time, place, and manner restriction. Renton, 54 U.S.L.W. at 4163.

The ordinance also fails as a time, place, and manner restriction because Watseka had less restrictive means available to achieve its objectives. As we mentioned in Kenosha, the Supreme Court and other courts have noted approval for less restrictive alternatives to protect the homeowner's privacy interest. 767 F.2d at 1257 (citing Munson, 467 U.S. 947, 104 S. Ct. 2839, 2850 n.10, 81 L. Ed. 2d 786 ; Schaumburg, 444 U.S. at 638-39; Martin v. Struthers, 319 U.S. at 148; Frontenac, 714 F.2d at 819; New York Community Action Network, Inc. v. Town of Hempstead, 601 F. Supp. 1066, 1071 (E.D.N.Y. 1984); Village of Olympia Fields, 511 F. Supp. at 107; Daley, 324 S.E.2d at 72). For example, 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. Id. Watseka had already provided that a homeowner can bar all solicitors by posting a sign, or any particular solicitor at any time by asking the solicitor to leave. Watseka also has in place a comprehensive registration scheme. Watseka made no effort to establish that a complete ban provided any greater protection of its citizens' privacy than the significantly less restrictive alternatives which Watseka is already using.

Watseka also failed to offer evidence that its legitimate objective of preventing crime cannot be served satisfactorily be enforcing Watseka's application and registration requirements for solicitors, as well as by enforcing laws against trespass, fraud, burglary, and other offenses against a resident on his or her property. See Frontenac, 714 F.2d at 819; Daley, 324 S.E.2d at 725. Watseka's attempt to safeguard its citizens' privacy and protect them from crime is laudable, and the majority of the ordinance's provisions are narrowly tailored to promote Watseka's objectives with only minimal interference with First Amendment rights. Indeed, IPAC is more than willing to comply with Watseka's registration requirements and to honor all "No Solicitors" signs. It is only the 5 p.m. to 9 p.m. complete ban on solicitation that fails to pass constitutional muster, in light of the less restrictive alternatives Watseka has available to it, many of which Watseka has in fact already incorporated into the ordinance.

Finally, Watseka failed to show that the alternatives left open to IPAC are ample and adequate. Watseka argues that IPAC can still canvass in public places, canvass during the daytime (9 a.m. to 5 p.m.), and canvass by mail or over the phone. Although the Third Circuit found similar alternatives to be sufficient in Munhall, 743 F.2d at 187-88, that decision was criticized by one judge on the panel, 743 F.2d at 193-95 (Becker, J., dissenting), and cited with disapproval in Kenosha, 767 F.2d at 1256. Other than allegations in its affidavits that some of Watseka's employers run three shifts, Watseka offered no evidence that the alternatives open to IPAC were ample and adequate. Watseka offered no evidence how many employees worked "odd" shifts, or what hours those shifts worked, or how any of that affected the number of residents home at various times. IPAC presented testimony that other methods, such as telephoning and mail, are more expensive and less effective that in-person solicitation at the citizen's residence. Watseka made no effort to rebut this testimony.

In granting First Amendment protection to door-to-door solicitation and canvassing, the Supreme Court has implicitly recognized that door-to-door communication has a special significance not duplicated by less personal forms of contact. Because Watseka has prohibited IPAC from soliciting during the hours when solicitation is most effective, and has failed to offer evidence that the alternatives left open to IPAC are ample and adequate, the ordinance is unconstitutional.

To summarize, Watseka has failed to offer evidence that its 5 p.m. to 9 p.m. ban on solicitation is narrowly tailored to achieve Watseka's legitimate objectives. Watseka failed to show both the necessary relationship between the ban and its objectives, and that it could not achieve its objectives by less restrictive means. Watseka also failed to offer evidence that the statute left open adequate and ample alternative channels of communication. The district court's decision to grant summary judgment for IPAC is affirmed.

III. DAMAGES

Watseka challenges the amount of damages awarded by the trial court, arguing that at most IPAC is entitled to nominal damages. The district court determined that IPAC lost $5,500 is revenue because of its inability to canvass in Watseka from 1981 to 1983. The court reduced this amount to $3,300 to reflect IPAC's average overhead cost of forty percent. The court also awarded IPAC $5,000 to reasonably and fairly compensate IPAC for its loss of its First Amendment right. See Walsh v. Brewer, 733 F.2d 473, 474, 477 (7th Cir. 1984). The total award was $8,300.

As to the actual damages of $3,300, Watseka apparently does not dispute that this is a reasonable amount, but it claims that IPAC failed to mitigate the damages. Assuming arguendo that 42 U.S.C. § 1983 requires the mitigation of damages, see Berry v. Macon County Board of E ducation, 380 F. Supp. 1244, 1247-48 (M.D. Ala. 1971), we reject Watseka's argument that IPAC suffered no damages because it should have assigned its canvassers to another place instead of Watseka. IPAC sends out canvassers based upon the amount of territory it needs to cover, so it could not recoup the money it would have received from Watseka citizens. As for Watseka's argument that IPAC should have mitigated its damages by soliciting in accordance with the unconstitutional ordinance, Watseka made no attempt to dispute IPAC's evidence that an attempt to canvass on a Saturday in 1980 netted significantly lower revenues. Assuming IPAC had a duty to mitigate, it only needed to make reasonable attempts. We affirm the district court's award of actual damages.

Watseka also challenged the award of $5,000 to IPAC to compensate it for injury to its First Amendment rights. In addition to the lost revenues discussed above, IPAC alleges as damages (1) its inability to recruit new members in Watseka, (2) its inability to disseminate its views to Watseka residents, and (3) its inability to encourage Watseka citizens to support IPAC positions on various issues by signing petitions or contacting local legislators. Watseka's principal argument is that a court can impose damages beyond lost revenue only for injury to reputation, or for mental or emotional injury.

The Supreme Court recently considered the proper standard for determining damages for the loss of First Amendment rights in Memphis Community School District v. Stachura, 477 U.S. 299, 91 L. Ed. 2d 249, 106 S. Ct. 2537, 54 U.S.L.W. 4771 (U.S. June 25, 1986). In Stachura, the Court held that a section 1983 plaintiff could not recover damages based upon the "abstract 'value' or 'importance' of constitutional rights." Id. at 4774. The Court did not limit compensatory damages, however, even in cases where the monetary value of the particular injury is difficult to ascertain. Id. at 4774 n.14 (discussing with approval Nixon v. Herndon, 273 U.S. 536, 71 L. Ed. 759, 47 S. Ct. 446 (1927), a case holding that a plaintiff who was illegally prevented from voting in a state primary election suffered compensable injury). In discussing Nixon v. Herndon, the Court noted that

This holding did not rest on the 'value' of the right to vote as an abstract matter; rather, the Court recognized that the plaintiff had suffered a particular injury - his inability to vote in a particular election - that might be compensated through substantial money damages.

54 U.S.L.W. at 4774 n.14. Judge Baker's order makes it clear that he was awarding IPAC damages because Watseka "prevented [IPAC] from exercising its First Amendment rights in this case;" he did not base the award on any abstract value of the constitutional right. The specific compensable, non-abstract harm to IPAC can be seen from the specific injuries alleged by IPAC which we noted above. The type of particular injury for which Judge Baker awarded IPAC $5,000 is indistinguishable from the particular injury for which the Court approved compensatory damages in Nixon v. Herndon. We thus affirm the district court's award of $3,300 for lost revenue and $5,000 for lost First Amendment rights, a total of $8,300. To the extent Watseka raises additional challenges to the district court decision, we find them to be without merit.

IV. CONCLUSION

Watseka's ordinance to the extent it imposes a ban no soliciting between 5 p.m. and 9 p.m., impermissibly infringes upon the First Amendment rights of IPAC, and others similarly situated, to canvass and solicit in Watseka. In finding a portion of the ordinance unconstitutional, we do not intent to discourage Watseka from amending its ordinance to constitutionally satisfy its legitimate concerns in reasonable balance with the rights ...


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