ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 81-0518)
Before Gibbons and Sloviter, Circuit Judges, and Meanor, District Judge.*fn*
Ad World, Inc., a publisher, appeals from a judgment in favor of the defendant Doylestown Township in a suit for damages and declaratory and injunctive relief prohibiting enforcement of Doylestown Ordinance 117.*fn1 We conclude that the ordinance violates Ad World's first and fourteenth amendment rights, and we reverse.
Ad World, Inc. publishes Piggy Back, a 16 page tabloid which includes extensive advertising and a few pages of consumer and community information. Included in such community information are notices of community events and announcements. 510 F. Supp. at 853. Piggy Back provides coverage of communities and neighborhoods such as Doylestown Township by a free weekly distribution to every home in the area. Delivery is through local route carriers who attach the paper in a plastic bag to a mailbox hook or to a door knob or leave it on the premises. Ad World's policy is to stop delivery when a resident so requests, but it does not initially seek the householder's affirmative consent for delivery.
Piggy Back is a vehicle for advertisement by local merchants for the local market as well as a vehicle for news and announcements of local origin and interest. Publications such as Piggy Back are able, through an almost universal distribution to communities in suburban and rural areas, to make rates per household reached so attractive that local businesses can afford to advertise. Although the bulk of Piggy Back's content is advertising, appellant claims that the ratio of editorial and news contents to advertising is not significantly different from that of some metropolitan newspapers. The revenue from ads in Piggy Back allows Ad World to deliver its publication free of charge.
In October, 1980, plaintiff began distributing Piggy Back to homes in Doylestown Township, Bucks County, in Pennsylvania. On February 3, 1981, the Township enacted Ordinance 117:
AN ORDINANCE OF THE TOWNSHIP OF DOYLESTOWN, BUCKS COUNTY, PENNSYLVANIA, REGULATING THE DISTRIBUTION OF ADVERTISING MATERIALS AT RESIDENCES WITHIN THE TOWNSHIP.
WHEREAS, certain persons, firms or corporations have recently begun the distribution of advertising materials to Doylestown Township residents by placing or hanging the advertising material on mail boxes or posts or by depositing the said material upon other portions of private property without the request or consent of the owners or occupiers of the property, and
WHEREAS, in the judgment of the Board of Supervisors this manner of distribution of advertising materials is unsightly, constitutes an invasion of privacy, and unless picked up by the property owner within a reasonable time, the presence of such advertising material would be a clear indication that the residence was unoccupied and thus increase the possibility of vandalism and/or burglary.
BE IT ORDAINED, by the Board of Supervisors of the Township of Doylestown, Bucks County, Pennsylvania and it is hereby Ordained and Enacted by authority of same:
1. That it shall be unlawful for any person, firm or corporation to distribute advertising material at a residence within Doylestown 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 distribution of advertising material through the United States mail service.
2. That any violation of this Ordinance shall be considered a summary offense and upon conviction before a district justice, the violator shall be subject to a fine not exceeding $300.00. Each unlawful distribution to a residence shall be considered as a separate offense.
3. That this ordinance shall be added to the Code of Ordinances of the Township of Doylestown, Bucks County, Pennsylvania, and shall be effective ...