Request By:
Mr. Roy V. Thurman, Director
Capital Plaza Authority
405 Mero Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Joe Johnson, Assistant Attorney General
In your recent letter to this office, you state that the Capital Plaza Authority is considering the promulgation of an administrative regulation to control the distribution of handbills and the placing of leaflets on motor vehicles in the Plaza's garages and parking areas, promoting various commercial activities. The regulation, if enacted, would be substantially similar to a regulation of the Kentucky Fair and Exposition Center in Louisville (303 KAR 1:075(3)(4) and (5)) which states as follows:
Section 3. (1) No person shall carry on any commercial activity at the Kentucky Fair and Exposition Center without permission of the Kentucky State Fair Board; (2) No person shall post, distribute or display commercial signs, circulars or printed or written materials within the grounds of the Kentucky Fair and Exposition Center without permission of the Kentucky State Fair Board.
Section 4. No person is licensed to enter or to remain upon the grounds of the Kentucky Fair and Exposition Center for the purpose of doing any of the acts described in Sections 1, 2, and 3 of this regulation unless such person has received authorization or permission from the Kentucky State Fair Board for such acts.
Section 5. Authority to authorize or grant permission to do any of the acts described in Sections 1 and 2 of this regulation is hereby delegated to the Executive Director of the Kentucky State Fair Board and may be redelegated by him to other employees or agents of the Kentucky State Fair Board, or for specific events only, to the group or person conducting or sponsoring such events. (KyR. 247; eff. 2-1-78) (Emphasis added).
The First Amendment to the United States Constitution states in part as follows:
Congress shall make no law . . . abridging the freedom of speech or of the press. . . .
The counterpart in the Kentucky Constitution to the First Amendment to the United States Constitution is found in Section One and states in part as follows:
All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
. . .
The right of freely communicating their thoughts and opinions.
Your question is whether the above-quoted regulation is beset with any constitutional infirmities. Your question is especially interesting because there are no Kentucky authorities directly on point. However, there is an abundance of authority and guidance from the United States Supreme Court.
It was held almost fifty (50) years ago by the United States Supreme Court that the constitutional guarantees of freedom of the press is not confined to newspapers and periodicals, but also necessarily embraces pamphlets and leaflets. Lovell v. Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938). It has been held that a municipal ordinance which prohibits persons in public streets from handing circulars and handbills to those willing to receive them, the purpose of which is to prevent the littering of streets by persons who after receiving them throw them away, violates the First Amendment's guarantee of freedom of speech and freedom of the press. Schneider v. Irvington, 303 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1940); Jamison v. Texas, 318 U.S. 413, 63 S. Ct. 669, 87 L. Ed. 869 (1943).
The constitutional principle of free speech covers distribution as well as publication, since without circulation the publication would be of little value. Winters v. New York, 333 U.S. 507, 68 S. Ct. 665, 92 L. Ed. 840 (1948). Accord: Banton Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963). It has also been held that a statute or regulation cannot require that the names and addresses of persons who printed or distributed the material appear on the handbill. Talley v. California, 362 U.S. 60, 80 S. Ct. 536, 4 L. Ed. 2d 559 (1960). Also, in determining whether a prohibition against the distribution of leaflets is unconstitutional, the courts do not concern themselves with the truth, falsity or validity of the publication. Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971).
The question is whether the property is dedicated to a public or private use. For example, a privately owned shopping center even though open to the public has been held to be not so dedicated to the public use so as to entitle persons to distribute handbills which are totally unrelated to the shopping center's operations. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972). Of course, in the cases of both the Kentucky State Fair Board and the Capital Plaza Authority, we are faced with the regulation of the distribution of handbills on public property -- that is, property dedicated to a public use. No private property rights are involved as was the case of the privately-owned shopping center. The property of both the Kentucky State Fair Board and the Capital Plaza Authority falls in the same category as any public street, walkway or thoroughfare.
However, having stated the above, the fact remains that the regulation under consideration will restrict commercial as opposed to political activities. In this respect, the regulation does not run afoul of the Free Speech Clause of the First Amendment to the United States Constitution. As the Court stated in Valentine v. Chrestensen, 316 U.S. 52, 62 S. Ct. 920, 86 L. Ed. 1262, 1265 (1942):
This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes no such restraint on the government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment.
The Court in that case went on to hold that the constitutional right of free speech was not infringed by prohibiting the distribution in the city streets of handbills bearing on one side a protest against actions taken by public officials and on the other advertising matter where the affixing of the protest to the advertising circular was with the intent of evading a city ordinance forbidding the distribution in the city's streets of commercial and business advertising matter. In other words, a statute or regulation restricting on public property the distribution of leaflets and handbills promoting commercial or business activities is constitutional. Therefore, we are of the opinion that the regulation of the Kentucky State Fair Board is not beset with any constitutional infirmities.