City’s stance against fliers draws lawsuit from ACLU; councillors seek alternative
A citizen facing police fines for putting fliers on cars heard support from city councillors Monday, possibly helping cut short a lawsuit against the city that calls its ban on fliers a violation of First Amendment rights.
Perhaps even more significant was a point made by some of the 15 people standing in support of the resident, P.F. Soto, including a representative from the state’s chapter of the American Civil Liberties Union: The statute cited by the police and city against Soto and others didn’t even seem to apply.
“The ordinance is titled ‘defacing public property.’ To deface is to ruin or to mar a surface – it focuses on actions that have some degree of permanence. It’s more like painting or gluing or nailing something onto, say, a utility pole. There’s nothing about that it that relates to leaving a leaflet on a car windshield. That doesn’t deface or mar a surface,” said Sarah Wunsch, staff attorney at the ACLU of Massachusetts, which is aiding the lawsuit against the city with the help of the law firm WilmerHale.
“We spent a lot of time trying to urge the city not to view the ordinance that way, but they said they were going to and they were going to enforce it,” Wunsch said, proposing a clarification of the ordinance that could still end the situation outside of court. “We had hoped from the start of this issue that it could be resolved easily, so we only reluctantly filed suit.”
In addition, three circuit courts of appeal nationwide have upheld citizens’ rights to pamphlet as Soto had been doing, she said, and only one has sided with city officials against citizens placing fliers for noncommercial purposes.
City sticks by position
The city has stuck by its definition of the ordinance since December 2011, when Soto had already been posting fliers for her UpandOut organization and its film screenings for some five years. City Solicitor Nancy Glowa, who has talked with councillors about the lawsuit in closed-door sessions, declined Monday to answer questions about Law Department interpretations of the ordinance. Indicating she was unprepared, she instead prodded the council to refer the issue to committee to “consider whether any changes should be made” to it – a direction that avoids facing whether the law is being misinterpreted or misapplied.
Soto’s series draws between 20 and 40 people to her housing complex’s community room on the third Thursday of every month to see films on issues of peace, the environment and social justice, Wunsch said. The screenings are free to the public and paid for by Soto, who advertised the events mainly by putting fliers on random neighborhood cars – saying some in her target audience don’t have regular access to the Internet or would know where to look – until Dec. 12, 2011, when a police officer told her she needed a permit to leaflet, and that without one the law considered her to be littering. Her actions could bring fines of up to $300 per illegal advertisement, the lawsuit says.
Soto’s public opponent, who identifies himself as Cambridge tech worker Ty Cornwall, said he is also worried about littering and has gathered up UpandOut fliers Soto tried to distribute and launched a website asking: “Tired of the UpandOut.org fliers stuck in your car window? Tired of see the UpandOut.org fliers littering the street? Did you know that the trash UpandOut.org is pushing around town that gets thrown on the ground typically winds up in the Charles River? I hoped that the people at UpandOut.org would listen to these concerns and stop the eco-destruction. I begged for them to stop but they do not feel it is their responsibility or problem. So whose is it? They say it is yours!”
Soto said she knew of only one person who opposed her activities, but only after attending a screening, when he apparently “decided he didn’t like my politics. This is almost certainly a political issue.” That person bragged to her about his impact on the leafletting, she said.
After stopping distribution more than two years ago, Soto contacted the ACLU, and in January 2012 the civil rights organization contacted the city. The city’s reply to Soto and the ACLU included a 1994 opinion saying it was illegal for Harvard Square business to puts ads on parked cars, according to the lawsuit, and the Law Department affirmed that position in May 2013, despite Soto’s lawyers pointing out that her leaflets were both noncommercial and backed by appeals courts precedent.
The five councillors speaking Monday expressed concern about the city’s stand.
“I don’t even know where to begin,” councillor E. Denise Simmons said, calling the case and the public testimony in support of Soto “a reminder of the Cambridge that we were and the Cambridge we’ve become. Two decades ago, this would be not anything we’d think much about.”
She wondered about the effect on kids who wanted to hold a car wash fundraiser, while other councillors pondered the illegality of posting fliers looking for missing pets and where the line was drawn on the fliers they distribute seeking votes at election time.
“I received an email from a person who had a cat that was missing and posted fliers on several telephone poles – and was threatened with fines,” vice mayor Dennis Benzan said. “I agree with what some of the speakers said: The ordinance is very ambiguous. The First Amendment protects free speech, and it’s the First Amendment to the U.S. Constitution for a reason, because it was one of the most, if not the most, important protections … in our Constitution. So any time free speech issues are raised, we really have to look with very wide eyes.”
Councillor Nadeem Mazen said he saw Soto reaching out and trying to be responsible about not leafletting the cars of people who asked to be skipped, while the city fell short on providing alternative ways for citizens to advertise their events, such as public bulletin boards.
There were also residents who questioned the basis of the city and online complaints against Soto.
“I get fliers on my doorstep,” Lorraine Grzyb said. “And if I don’t want to go to that restaurant, I put it in my recycling bin. I don’t think it’s a very huge deal as compared with freedom of speech.”
John Roberts, former president of the state ACLU, agreed that “unfortunately there are people who throw litter on the ground, but it is not the fault of the leafletter, or the manufacturer who made the cup or the can or the newspaper that was irresponsibly discarded. I have lived three blocks from a small group of stores affectionately known as Huron Village, just far enough away that my front hedge is the recipient of countless gum wrappers, soda cans, popsicle sticks – you get the idea. But no one is going to propose an ordinance, policy or executive order to close the stores because they generate litter.”
“This is a no-brainer,” Roberts said. “Leafletting is protected speech.”
The discussion was referred to the council’s Ordinance Committee.
John Hawkinson contributed research to this article.