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COMMONWEALTH PENNSYLVANIA AND LT. M. VAN LEER v. RICHARD S. STERLACE (10/06/78)

decided: October 6, 1978.

COMMONWEALTH OF PENNSYLVANIA AND LT. M. VAN LEER, APPELLANTS,
v.
RICHARD S. STERLACE



No. 151 March Term, 1976, Appeal from the Decision and Order filed March 16, 1976 of the Commonwealth Court of Pennsylvania at No. 197 C.D. 1975, Reversing the Order of the Court of Common Pleas, Civil Division, of Allegheny County, at SA No. 6 of 1975

COUNSEL

James W. Dunn, Jr., Pittsburgh, for appellants.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Larsen, J., did not participate in the consideration or decision of this case. Manderino, J., filed a dissenting opinion.

Author: Roberts

[ 481 Pa. Page 8]

OPINION OF THE COURT

McCandless Township's Board of Commissioners enacted Ordinance No. 662 to regulate the distribution of advertising materials. Ordinance No. 662 provides, in pertinent part:

"It shall be unlawful for any person, firm, or corporation to distribute advertising material at a residence within the township (other than at the home of the person, firm or corporation distributing the same) by placing such material at the residence, on the property or on the residential mail box of the person owning or occupying the residence, unless the person, firm or corporation distributing such advertising material does so based upon the affirmative request or consent of the person occupying the residence. The foregoing provision shall not apply to the

[ 481 Pa. Page 9]

    distribution of advertising material through the United States mail service."

Appellee Richard Sterlace, engaged in the business of distributing advertising materials to McCandless Township residences, filed a complaint in the Court of Common Pleas to enjoin enforcement of the Ordinance pending a determination of its constitutionality. The Ordinance was held constitutional and injunctive relief was denied by the court (Silvestri, J., sitting in Equity). Appellee was then charged with violations of Ordinance No. 662, found guilty in magistrate's court, and fined $30. After a trial de novo in the Court of Common Pleas, his conviction was affirmed.

The Commonwealth Court held Ordinance No. 662 unconstitutional under the first and fourteenth amendments to the Constitution of the United States. We granted allowance of appeal and now reverse.*fn1

I. Regulating the Time, Place or Manner of Speech

The United States Supreme Court has long recognized that all "time, place and manner" regulations -- that is, regulations addressed not to the content of speech, but to some condition of its occurrence -- burden the flow of speech. But it has always been necessary to show more than the existence of such an increased burden. To strike a time, place or manner regulation as violative of the first and fourteenth amendments to the Constitution, it is necessary to establish that, given the nature of the governmental interests, the regulation unduly burdens protected speech. Mr. Justice Marshall, speaking for the Court, has recently reaffirmed this view:

"Our cases make equally clear, however, that reasonable 'time, place and manner' regulations may be necessary to further significant governmental interests, and are permitted. . . .

[ 481 Pa. Page 10]

The nature of a place, 'the pattern of its normal activities, dictate the kinds of regulations of time, place and manner that are reasonable.' . . . [I]n assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State's legitimate interest." (footnotes omitted)

Grayned v. City of Rockford, 408 U.S. 104, 116-17, 92 S.Ct. 2294, 2303-04, 33 L.Ed.2d 222 (1972) (upholding city antinoise ordinance regulating speech on land ...


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