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Spreading the faith — one windshield at a time

Inside the First Amendment

By Kenneth A. Paulson
Senior vice president, the Freedom Forum
Executive director, First Amendment Center

12.30.01

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When you return to your parked car and see a piece of paper flapping beneath the windshield, freedom of speech isn’t likely to cross your mind.

At first glance, most of us think we have been ticketed and are relieved to find anything else in its place. Very often the leaflet is in fact an ad, promoting a local car wash or an upcoming concert.

While those leaflets are sometimes an annoyance, few people would bother legislating against them. The easy remedy for an unwanted leaflet is to drop it in your pocket and discard it later.

That’s not how the state of Wisconsin and specifically, the city of Milwaukee saw it, however. The city adopted existing state legislation that banned the placement of a pamphlet on any vehicle, whether or not the vehicle was occupied. Violators had to pay a fine of between $20 and $400.

That law posed a problem for Rosemary Deida, a Christian woman who strongly believes in the need to witness to others. She sometimes does this by distributing religious literature, both to passersby and under the wipers of parked cars.

A year ago on Dec. 20, Deida began distributing leaflets in the area around City Hall. On an adjacent street, she placed a leaflet under the wiper of every car she passed. Officer Walter Tyshynsky came out of City Hall and Deida gave him a leaflet. The officer then told her that he would be citing her for a violation of the law. She responded by asking for his name and badge number in order to pray for him.

With the help of Liberty Counsel, a religious-rights foundation based in Florida, Deida sued the city and asked for an injunction.

U.S. District Judge Lynn Adelman heard the case and on Dec. 10 came down squarely in favor of Deida’s First Amendment rights, deciding that the law was unconstitutional. As the court’s written opinion noted:

  • The city said it was simply trying to prevent littering and not limit the free flow of information. Yet the law specifically permitted leaflets by an organization trying to raise awareness of handicap parking rules. Under the First Amendment, government isn’t allowed to permit the dissemination of some ideas and not others.
  • The city contended that its anti-leafleting law was tantamount to trespassing regulations, merely barring intrusion on private vehicles. Yet the cars being leafleted were on public streets. “By history, tradition and government fiat, streets and sidewalks are open and used for expressive activity,” the court found.
  • While governments have some leeway in regulating the so-called “secondary effects” of speech, courts have only upheld restrictions in cases involving nude dancing and adult bookstores. In this case, the material being distributed was religious expression, which the court observed “holds a place at the core of the type of speech that the First Amendment was designed to protect.”

Although the city has talked about appealing the case, chances are it won’t go anywhere. This is not a case the Supreme Court is ever likely to hear. In fact, the decision is likely to have only modest impact as legal precedent.

It is a classic illustration, though, of how easy it is for government to infringe on our most fundamental freedoms as it tries to address life’s little irritations.

It’s also a reminder of how an individual, fueled by faith and commitment, can appeal a $158 ticket and in the process overturn a poorly drafted and overreaching law.

With the First Amendment on your side, you can fight city hall.

Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212

Related

Milwaukee must allow leafleting on car windshields
Deputy city attorney says city may appeal, likely focusing on strict legal standard used by federal judge.  12.13.01

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