On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 84-0745)
Before WEIS and SLOVITER, Circuit Judges, and POLLAK, District Judge*fn*
This appeal arises out of a suit brought under 42 U.S.C. § 1983 by three political action groups against ten New Jersey municipalities, alleging that the municipalities' ordinances regulating door-to-door canvassing and solicitation violated rights protected by the federal and New Jersey constitutions. The district court upheld the challenged provisions against the federal constitution challenge and dismissed the pendent state claim.
Appellants are New Jersey Citizens Action (NJCA), the League of Conservation Voters (Conservation League), and Paramus Citizens for a Nuclear Weapons Freeze (Paramus Freeze) (hereafter collectively referred to as "citizens groups"). NJCA, a political action federation of individuals and organizations, including trade unions, church groups, and senior citizens associations, engaged in educational, research, canvassing, and citizens lobbying activities to find legislative and political solutions for problems of public concern in New Jersey, such as energy costs, taxes, toxic waste and unemployment. Conservation League, a national political action committee which maintains an office in New Jersey, educates the public and lobbies legislative bodies about environmental issues. Paramus Freeze is an unincorporated association working to increase public support for a nuclear weapons freeze; its activities are limited to Paramus.
All of these organizations use door-to-door canvassers to present their programs to citizens, to receive citizens' viewpoints, and to raise funds. The district court found that NJCA and Conservation League raise over 80% of their funds through canvassing. These organizations hire as canvassers mostly young people who are paid a salary, which is conditioned on their meeting a preset fundraising goal. Paramus Freeze has mostly older canvassers who are all volunteers. The NJCA and Conservation League canvassers canvass only from 4 p.m. to 9 p.m.
The citizens groups*fn1 originally filed suit against ten New Jersey municipalities,*fn2 alleging that the sections of the municipal ordinances that regulate door-to-door solicitation and canvassing violate plaintiffs' rights under the First and Fourteenth Amendments to the United States Constitution and similar guarantees of the New Jersey constitution. Although temporary restraining orders were issued against two towns, the district court ultimately merged the citizens groups' request for a preliminary injunction against all defendants with a trial on the merits, limited to the claim for injunctive relief. It reserved the issues raised by plaintiffs' claims for money damages.
At trial, the citizens groups challenged only those sections of the ordinances that prohibited noncommercial door-to-door canvassing and solicitation during evening hours, generally after 5 p.m. or 6 p.m. or sunset, and that require prospective solicitors to be fingerprinted. They do not challenge the municipalities' right to bar canvassing after 9 p.m.*fn3
After hearing extensive testimony from both sides, the district court issued an opinion containing detailed findings of fact and conclusions of law in which it found that "the preponderance of evidence indicates that the time restrictions on canvassing do not deter or prevent crime in these municipalities as a matter of fact," App. at 32, and that the "preponderance of the evidence . . . indicates that these plaintiffs do not have meaningful alternatives to evening canvassing . . . [because] plaintiffs c[an] not survive economically if the restrictions at issue remain in place." App. at 33.
The court thus found that "the preponderance of the evidence . . . weighs rather heavily in the direction of the plaintiffs . . . " App. at 32. However, the court felt "constrained" to hold that the prohibition of evening canvassing was constitutional because of this court's decision in Pennsylvania Alliance for Jobs & Energy v. Council of the Borough of Munhall (PAJE), 743 F.2d 182 (3d Cir. 1984), which the district court read as holding that "restrictions on door-to-door canvassing which prohibit such activity after dark or after 5:00 p.m. are per se facially reasonable." App. at 30.
Turning to the fingerprinting requirements, the district court found that "there is no evidence on this record that canvassers have been involved in criminal activity . . . ." App. at 35-36. Again, however, the court found itself circumscribed by prior decisions of this court to uphold the regulation if it was "reasonably related" to a valid state interest. Therefore, the court rejected plaintiffs' challenges to these regulations as well.
The court refused the citizens groups' request to retain jurisdiction over their claims that other provisions of the ordinances are also unconstitutional, holding that the issues had not been preserved.*fn4 Finally, the court declined to exercise pendent jurisdiction over the state constitutional claim. Plaintiffs do not challenge these rulings on appeal.
The citizens groups appeal,*fn5 claiming first that the district court misconstrued the law in this circuit, and that the district court's factual findings required it to hold the hours restrictions unconstitutional. Second, plaintiffs contend that the fingerprinting requirement is not governed by a reasonable relation test, and that, under the proper, more stringent analysis, the fingerprinting requirement is unconstitutional. On appeal, this court granted the motion of the Pennsylvania Public Interest Coalition, Republican City Committee of Philadelphia. Americans for Democratic Action of Southeastern Pennsylvania, and Friends of Bob Edgar [the Democratic Party's candidate in Pennsylvania for the United States Senate] to file an amici curiae brief. The amici urge reversal, arguing in their joint brief that "their ability to function -- for some perhaps even their survival -- is at issue." Brief of Amici at 1.
A brief description of the challenged ordinances, which include a potpourri of exclusions, may be helpful to an understanding of the relevant legal issues. Each limits the hours during which door-to-door soliciting and canvassing can occur, but there are some variations. North Arlington prohibits canvassing between 5 p.m. and 9 a.m. and on legal holidays, Sunday and during the month of December, Woodbridge prohibits canvassing during these same hours, but without any daily or monthly restrictions. However, "[c]ertain charitable, religious, and historical societies," defined by reference to state law, are exempted from some aspects of the ordinance. Woodcliff Lake's ordinance likewise restricts canvassing to between 9 a.m. and 5 p.m. and prohibits canvassing altogether on Sundays. The ordinance contains an exception for "[a]ny person soliciting votes for a bona fide candidate for public office." In addition, the ordinance vests in the Mayor and Council of the town the power to suspend the provisions of the ordinance with respect to nonprofit organizations. Harrington Park's ordinance as attached to the complaint also prohibits canvassing after 5 p.m. and on Sundays and holidays, although the district court found that the curfew was sunset. The ordinance excludes from its licensing provision "nonprofit, religious, charitable, civic, or veterans' organizations" if those organizations file an application and are found to be "bona fide" by the Borough's police department.
When this suit was filed, Paramus permitted canvassing only on weekdays from 9 a.m. to 6 p.m., but the district court noted that it has since amended its ordinance to allow canvassing on Saturdays. See App. at 34 n.21. The Paramus ordinance contains an exception for "peddlers of food" who are allowed to operate from 9 a.m. to 9 p.m., seven days a week.
Piscataway prohibits solicitation and canvassing after sunset. Although Piscataway's hours limitation appears to apply only to "hawkers and peddlers," and not to "solicitors, canvassers, and itinerant vendors," the district court did not distinguish between Piscataway's ordinance and the others.
Five of the municipal ordinances submitted to this court require solicitors and canvassers to be fingerprinted as a condition for obtaining a license to operate. Woodcliff Lake's ordinance gives the Borough's police department discretion to require fingerprinting if it "determines that fingerprints are necessary for proper identification." However, at the March 27, 1984 hearing, counsel for Woodcliff Lake and North Harrington stated that neither would enforce the fingerprint requirement against plaintiffs.
A. Standard to be Applied
The parties do not dispute the underlying legal premise that door-to-door canvassing and solicitation are protected by the First Amendment, and that this protection is not diminished because the canvassers seek funds as well as adherents. See Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980). Indeed, the Supreme Court has suggested that door-to-door canvassing is entitled to "special solicitude" because it is "much less expensive" than alternative forms of communication. See Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812 n.30, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984). Despite this solicitude, it is also undisputed that a municipality may subject door-to-door solicitation to reasonable time, place, and manner restrictions that are content neutral. See Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 616-17, 48 L. Ed. 2d 243, 96 S. Ct. 1755 (1976); PAJE, 743 f.2d at 185. Ordinarily, when a statute or other government action is alleged to infringe on the exercise of First Amendment rights, the state or municipality bears the burden of demonstrating the constitutionality of the action. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 29 L. Ed. 2d 1, 91 S. Ct. 1575 (1971); see also Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248, 1257 (7th Cir. 1985). The question before us is whether the municipalities have satisfied their burden of showing that these ordinances are valid time, place, and manner regulations.
The Supreme Court has never addressed the constitutionality of regulation of the hours of canvassing and solicitation.*fn6 See Note, Strangers in the Night: Ordinances Restricting the Hours of Door-to-Door Solicitation, 63 Wash. U.L.Q. 71, 72 (1985). There is a difference among the Courts of Appeals over the proper standard to apply to time, place, and manner restrictions of ordinances regulating the hours of door-to-door solicitation. Some courts, notably the Second, Seventh, and Eighth Circuits, hold that the hours regulation must be the least restrictive means of accomplishing the municipal purpose, on the theory that such a test effectuates the requirement that regulations that have an impact on First Amendment values must be drawn with precision. See City of Watseka v. Illinois Public Action Council, 796 F.2d 1547 (7th Cir. 1986); Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248, 1257 (7th Cir. 1985); Association of Community Organizations for Reform Now v. City of Frontenac, 714 F.2d 813, 818 (8th Cir. 1983); New York City Unemployment and Welfare Council v. Brezenoff, 677 F.2d 232, 237-39 (2d Cir. 1982). As the Seventh Circuit has stated, "If there is a less restrictive alternative to a challenged regulation, then the regulation appears to unnecessarily interfere with First Amendment activity and is not as narrowly drawn as it could be." Wisconsin Action Coalition v. City of Kenosha, 767 F.2d at 1255; see also West Virginia Citizens Action Group, Inc. v. Daley, 324 S.E.2d 713, 721-25 (W. Va. 1984).
On the other hand, it is settled in this court, in an opinion that is binding on us, that such ordinances will be upheld "if  they are imposed 'without reference to the content of the regulated speech, . . . .  serve a significant governmental interest, and . . .  leave open ample alternative channels for communication . . . .'" PAJE, 743 f.2d at 185 (quoting Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981)). In PAJE, we also stressed that "regulations of door-to-door canvassing must be precisely drawn to serve the interests they are designed to further." PAJE, 743 F.2d at 187 (emphasis added) (citing Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 104 S. Ct. 2839, 2853, 81 L. Ed. 2d 786 (1984) and Village of Schaumburg, 444 U.S. at 637). Although this may be considered as a separate factor in evaluation of a statute's constitutionality, we view it as relevant to the second inquiry, that which focuses on the manner in which the regulation serves the government interest.
Plaintiffs do not argue that the ordinances must be evaluated under the standard applied to regulations that are not content neutral, thus conceding that the first Heffron factor has been satisfied. They challenge the district court's conclusion as to the remaining two factors. They argue that the district court improperly deferred to the municipalities' legislative judgment in holding that the regulations precisely served the legislative goals, and that the district court misconstrued the decision in PAJE to compel a holding that the availability of certain other modes and times of communication are per se adequate alternatives to evening canvassing.
B. Is the Regulation Precisely Tailored to Serve Government Interests?
As we suggested earlier, there are two components to the second Heffron factor. The first is whether the government interest asserted is a substantial one. The second looks to how that interest is served by the regulation in question.
The municipalities assert that the hours regulations are justified by the government interests in preventing or deterring crime and protecting the legitimate privacy expectations of citizens at home. The district court found these interests to be substantial. That holding is consistent with out earlier opinion in PAJE, 743 F.2d at 187, and with the Supreme Court's recognition of the "important interests" served when a municipality seeks "to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing." Hynes v. Mayor of Oradell, 425 U.S. at 616-17.
The mere assertion of substantial government interests is not enough to satisfy the second Heffron factor. A valid time, place, and manner regulation must also "serve" that significant governmental interest, Heffron, 452 U.S. at 649. In Heffron, the Supreme Court upheld the limitation of groups distributing and selling literature and soliciting funds to fixed locations at a fairground, in part because there had been a finding, based on stipulated facts, that the state interest in the orderly movement of a large crowd and in avoiding congestion was significantly furthered by the limitation. Id. at 645-46, 651.
In this case, however, the district court made no such finding. On the contrary, it found "that . . . the preponderance of the evidence indicates that the time restrictions on canvassing do not deter or prevent crime as a matter of fact." App. at 32. Despite this finding, the district court construed this court's precedent to mean that "a facially reasonable relation between the restrictions and the asserted state interests is all that is required." App. at 32. The court based this standard partially on its conclusion that "'the legislative judgment that [its] goals are advanced by an ordinance is deferred to unless it is facially unreasonable.'" Id. at 30 (quoting Frumer v. Cheltenham Township, 709 F.2d 874, 877 (3d Cir. 1983)). The citizens groups argue that Frumer should not be read so broadly.
Frumer did not involve door-to-door canvassing but a township restriction on affixing temporary signs to utility poles, street signs, or other structures within the right-of-way of public streets or highways. In upholding the denial of a preliminary injunction, we noted that the district court had concluded that the ordinance serves significant governmental interests in traffic safety and community aesthetics. We rejected the plaintiff's challenge to the district court's conclusion, pointing out that the municipality need not establish this fact by empirical data. Id. at 877. It was in that context that we stated that "the legislative judgment that such goals are advanced by an ordinance is deferred to unless it is facially unreasonable." Id. We cited Metromedia, Inc. v. San Diego, 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct. 2882 (1981), where the plurality stated that it would "hesitate to disagree" with the widespread legislative judgment that billboards pose a threat to traffic safety in the absence of evidence that that judgment was unreasonable. Id. at 509. See also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 931, 89 L. Ed. 2d 29 (1986) (municipality "was entitled to rely on the experiences of" other cities, "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses").
We do not read Frumer as suggesting more than that a facially reasonable legislative judgment that a significant governmental interest will be advanced by certain measures is enough to satisfy the government's initial burden to demonstrate the constitutionality of the statute under challenge. Nothing in Frumer suggests that the legislative judgment that the means chosen will serve the end is irrebuttable. Thus, Frumer cannot support the expansive reading given it by the district court.
We turn next to our later decision in PAJE, which, like the cause before us, concerned a challenge to prohibition of evening hours canvassing and solicitation. Unlike this case, there was no hearing in PAJE, and the district court entered summary judgment for defendants sustaining the ordinance. The PAJE district court had found, presumably on the basis of unrebutted affidavits, "that each of the towns established a significant incidence of burglary and home invasion." PAJE, 743 F.2d at 187. The majority further indicated that a canvasser had been "involved in burglary and other crime." Id. We thus construe the statements in PAJE that "[t]he bans of door-to-door canvassing after dark directly and precisely serve the towns' interest in preventing crime" and "directly further the towns' interest in protecting the privacy of their residents." PAJE, 743 F.2d at 187, as an affirmation that the government met its burden to sustain the ordinance by producing this evidence. Judge Becker, in his dissent, disagreed that the record supported such a conclusion, id. at 191, but we are bound by the majority's holding that evidence of this quantum satisfies the government's burden.
In neither Frumer nor PAJE did we refer to any evidence produced by plaintiffs to rebut the defendants' showing "that the ordinances are precisely tailored to serve the towns' substantial interests in preventing crime and protecting the privacy of their residents." Id. at 187. Therefore, we cannot accept the district court's conclusion here that it was bound by Frumer and PAJE to reach the same conclusions on the "precisely tailored" issue notwithstanding ample rebutting evidence and its own factual findings.
The courts must give great deference to the legislative assumption of facts underlying the statute or ordinance at issue. However, even when a fundamental interest is not at issue, the legislative judgment is not accorded the per se validity that the district court applied here, and legislative findings unsupported by the evidence may be overturned. See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 3260, 3262, 87 L. Ed. 2d 313 (1985). It follows that when, as here, fundamental free speech interests are patently burdened, the district court ...