Association of Community Organizations for Reform Now, A/k/aacorn, and Vivian Allison, Appellants, v. City of Frontenac; David M. Blazer, Chief of Police, Cityof Frontenac; Morgan B. Lawton, Mayor, City of Frontenac;francis Phelan, Alderman, City of Frontenac; Harrygreditzer, Alderman, City of Frontenac; Marjorie R.harwood, Alderman, City of Frontenac; John H. Klamer,alderman, City of Frontenac; F. Ryan Preston, Alderman,city of Frontenac; and A. J. Spanogle, Alderman, City Offrontenac, Appellees, 714 F.2d 813 (8th Cir. 1983)

The plaintiffs, the Association of Community Organizations for Reform Now (ACORN), et al., appeal from an adverse judgment rendered by the United States District Court for the Eastern District of Missouri. The plaintiffs sued to enjoin the enforcement of a Frontenac city ordinance which prohibits ACORN workers from engaging in residential door-to-door canvassing in Frontenac after 6:00 p.m. The district court, sitting without a jury, upheld the ordinance as a reasonable time, place, and manner regulation. Association of Community Organizations for Reform Now v. City of Frontenac, 541 F. Supp. 765, 770 (E.D. Mo. 1982). Because we find the ordinance is not narrowly tailored to advance Frontenac's legitimate objectives, we hold that its application to ACORN would violate the plaintiffs' first amendment rights. Accordingly, we reverse the judgment of the district court and direct entry of judgment in favor of the plaintiffs.

ACORN is a nonprofit organization operating in Missouri, among other states. ACORN's purpose, as stated in its charter, is "to advance the interests of low and moderate income people as citizens of the United States and of their respective communities and states, in every area of their interest and concern." According to its brief, "ACORN seeks to mobilize significant numbers of people to influence private and public decision-makers with respect to issues of common concern to its members." In order to organize citizens into neighborhood groups, ACORN employees engage in residential door-to-door canvassing, normally on weekdays from 4:00 p.m. to 9:00 p.m. Residents are asked to support ACORN by signing a petition, providing financial or personal volunteer support, or subscribing to ACORN's newsletters.

In March 1981, the City of Frontenac enacted Ordinance No. 638, which provides in part:

Section 2. The following practices very often become nuisances and therefore are of such public concern that they must be regulated:

a) That of going in and upon private residences by peddlers, canvassers, solicitors and transient vendors of merchandise, not having been requested or invited so to do by the owner or occupant, for the purpose of soliciting orders for the sale of goods, wares and merchandise, or for the purpose of disposing of same.

b) That of peddling, selling of goods, wares or merchandise upon public or private streets or sidewalks.

c) That of soliciting money, services or orders for the sale of goods, wares or merchandise upon public or private streets or sidewalks.

d) That of soliciting money by a bona fide nonprofit charitable organization either (1) by going in or upon private residences, not having been requested or invited so to do by the owner or occupant, or (2) upon public streets or sidewalks.

....

Section 6. Hours of Solicitation: No person shall solicit except between the hours of 9:00 a.m. and 6:00 p.m. on each day, and no solicitation shall be done on Sundays, or legal holidays.

Frontenac, Mo., Code Ordinance No. 638, §§ 2, 6.¹  The parties have stipulated that Frontenac will enforce section 6 of the ordinance against ACORN workers who canvass during prohibited hours. As a result of the ordinance and its threatened enforcement, ACORN has suspended canvassing activities in Frontenac.

ACORN brought suit under 42 U.S.C. § 1983 (1976), claiming that Frontenac's enforcement of the ordinance deprived ACORN of its rights under the first and fourteenth amendments to the Constitution.²  The defendants responded at trial that the ordinance was necessary to protect the security and privacy of Frontenac residents, and to lessen the possibility of burglary and other crimes.

After a trial, the district court entered judgment for the defendants and held:

The Frontenac ordinance enacted by the defendants in this cause of action appears to be a permissible accommodation of the plaintiffs' rights to solicit and the municipality's interests in protecting its citizens and preserving the peaceful enjoyment of the homes for its citizens. Westfall v. Clayton County, 477 F. Supp. 862, 865 (N.D. Ga. 1979).

ACORN v. Frontenac, 541 F. Supp. at 770.

The district court reasoned that since the regulation was content neutral, that since Frontenac had a legitimate interest in protecting its citizens' privacy and safety, and that since ACORN had ample alternative opportunities to contact the public, the ordinance was a permissible time, place, and manner regulation of ACORN's exercise of its first amendment rights. Id. The plaintiffs appeal.³ 

Discussion.

ACORN's canvassing and soliciting activities clearly are protected by the first amendment, and the district court so held. ACORN v. Frontenac, 541 F. Supp. at 769. See Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 629, 632-33, 100 S. Ct. 826, 832, 833-34, 63 L. Ed. 2d 73 (1980). In addition, it is plain the ordinance in question directly and substantially affects ACORN's first amendment rights, since ACORN employees normally canvass from 4:00 p.m. to 9:00 p.m. on weekdays and desire to do so in Frontenac, but the ordinance prohibits canvassing after 6:00 p.m.

It is also unquestioned that Frontenac has the power to regulate the activities of canvassers and solicitors if the regulation is in furtherance of a legitimate governmental objective. E.g., Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17, 96 S. Ct. 1755, 1758-59, 48 L. Ed. 2d 243 (1976). However, such regulation must be undertaken

[W]ith due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease. Canvassers in such contexts are necessarily more than solicitors for money.

Village of Schaumberg, 444 U.S. at 632, 100 S. Ct. at 833.

Although the initial structuring of such a regulation is within the legislature's domain, it is the duty of the courts to determine the regulation's constitutional validity. Thomas v. Collins, 323 U.S. 516, 531-32, 65 S. Ct. 315, 323, 89 L. Ed. 430 (1945); Schneider v. State, 308 U.S. 147, 161, 60 S. Ct. 146, 150, 84 L. Ed. 155 (1939). In addition, although a duly enacted statute normally carries with it a presumption of constitutionality, when a regulation allegedly infringes on the exercise of first amendment rights, the statute's proponent bears the burden of establishing the statute's constitutionality. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S. Ct. 1575, 1577, 29 L. Ed. 2d 1 (1971); Citizens for a Better Environment v. Village of Schaumberg, 590 F.2d 220, 224 (7th Cir. 1978), aff'd, 444 U.S. 620, 100 S. Ct. 826 (1980); Citizens for a Better Environment v. Village of Olympia Fields, 511 F. Supp. 104, 106 (N.D. Ill. 1980).⁴ 

The validity of a regulation that infringes upon the exercise of first amendment freedoms will be sustained only if the regulation is narrowly drawn to further a legitimate governmental objective unrelated to the restriction of communication, and if it does not unduly intrude upon the exercise of first amendment rights. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 658, 101 S. Ct. 2559, 2569, 69 L. Ed. 2d 298 (1981) (Brennan, J., concurring and dissenting); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S. Ct. 2176, 2182, 68 L. Ed. 2d 671 (1981); Village of Schaumberg, 444 U.S. at 637, 100 S. Ct. at 836; Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940); L. Tribe, American Constitutional Law § 12-2, at 581-82 (1978).⁵ 

In applying the test to this case, we recognize that the preservation of the privacy and safety of its citizens is a legitimate governmental objective for Frontenac to pursue. A municipality certainly has the power, even the duty, to regulate activities within its borders to lessen the opportunities for crime against its residents and their property. Similarly, a municipality may regulate activities in the interest of preventing undue annoyance of its residents. Hynes v. Mayor of Oradell, 425 U.S. at 616-17, 619, 96 S. Ct. at 1758-59, 1760; Kovacs v. Cooper, 336 U.S. 77, 88, 69 S. Ct. 448, 454, 93 L. Ed. 513 (1949); Citizens for a Better Environment v. Village of Olympia Fields, 511 F. Supp. at 106; Connecticut Citizens Action Group v. Town of Southington, 508 F. Supp. 43, 47 (D. Conn. 1980).

Although we find that Frontenac's asserted objectives are legitimate, we hold that the regulation in issue here is not sufficiently tailored so as to avoid conflict with the plaintiffs' first amendment freedoms. Since constitutional principles require that the regulation be narrowly drawn to further the legitimate governmental objective, the proponent of the regulation must demonstrate⁶  that the government's objectives will not be served sufficiently by means less restrictive of first amendment freedoms. E.g., Schad v. Borough of Mount Ephraim, 452 U.S. at 70-72, 101 S. Ct. at 2183-84; Village of Schaumberg, 444 U.S. at 637-38, 100 S. Ct. at 836; Thomas v. Collins, 323 U.S. at 539-40, 65 S. Ct. at 326-27; Martin v. City of Struthers, 319 U.S. 141, 148, 63 S. Ct. 862, 865, 87 L. Ed. 1313 (1943); Schneider v. State, 308 U.S. at 164, 60 S. Ct. at 152. In this case, there is no showing that any of several less restrictive alternatives would not meet the government's objectives.

As noted above, Frontenac has a legitimate interest in protecting its residents from crime. This objective can be served satisfactorily by enforcement of the city's application and identification requirements for all canvassers, peddlers, and solicitors.⁷  In addition, trespassing, fraud, burglary, or any other offense against a resident or his property may be prohibited and the violator punished under existing penal laws.

Similarly, the city may achieve its goal of preventing undue annoyance of its residents through means less restrictive of constitutional freedoms than the means embodied in this regulation. The city's trespassing laws may be enforced against those who enter or remain on private property after its owner has indicated the intruder is not welcome. Furthermore, unlike the public transit patron in Lehman v. City of Shaker Heights, 418 U.S. 298, 304, 94 S. Ct. 2714, 2717, 41 L. Ed. 2d 770 (1974) (plurality opinion); id. at 307-08, 94 S. Ct. at 2719 (Douglas, J., concurring), and the unwilling target of the sound truck in Kovacs v. Cooper, 336 U.S. at 86-87, 69 S. Ct. at 453, the resident in this case is not a member of a captive audience. The solicitor or canvasser has no right to make an uninvited entry into a resident's home. Cf. Rowan v. United States Post Office Department, 397 U.S. 728, 736-38, 90 S. Ct. 1484, 1490-91, 25 L. Ed. 2d 736 (1970) (householder has right to bar entry of unwanted mail into home). If the resident is not interested in receiving the particular solicitor's message, he may indicate as much and close the door. If the resident cares not to receive messages from any solicitors or canvassers, he may post a sign to that effect at his door or at the entrance to his property. But Frontenac may not, in the interest of achieving its legitimate objectives, broadly prohibit the plaintiffs' activities when less restrictive alternatives will satisfactorily accomplish the same objectives. As the Supreme Court held in NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963): "Broad prophylactic rules in the area of free expression are suspect.... Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." Id. at 438, 83 S. Ct. at 340.⁸ 

We are not persuaded by Frontenac's argument that the ordinance is valid since it allows ACORN and others to solicit at alternative times, namely, from 9:00 a.m. to 6:00 p.m., Monday through Saturday. Regardless of ACORN's argument that to canvass during those hours would be fruitless,⁹  we note, as the Supreme Court has noted, that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State, 308 U.S. at 163, 60 S. Ct. at 151. See also Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 757 n. 15, 96 S. Ct. 1817, 1823 n. 15, 48 L. Ed. 2d 346 (1976); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556, 95 S. Ct. 1239, 1245, 43 L. Ed. 2d 448 (1975); Citizens for a Better Environment v. Village of Olympia Fields, 511 F. Supp. at 107-08.¹⁰  The issue in this case deals with the validity of Frontenac's prohibition of solicitation after 6:00 p.m. on weekdays, not with the efficacy of solicitation at some other time.

The importance of first amendment values has been aptly described by Professor Meiklejohn:

The First Amendment does not protect a "freedom to speak." It protects the freedom of those activities of thought and communication by which we "govern." It is concerned, not with a private right, but with a public power, a governmental responsibility.

In the specific language of the Constitution, the governing activities of the people appear only in terms of casting a ballot. But in the deeper meaning of the Constitution, voting is merely the external expression of a wide and diverse number of activities by means of which citizens attempt to meet the responsibilities of making judgments, which that freedom to govern lays upon them. That freedom implies and requires what we call "the dignity of the individual." Self-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express.

The responsibilities mentioned are of three kinds. We, the people who govern, must try to understand the issues which, incident by incident, face the nation. We must pass judgment upon the decisions which our agents make upon those issues. And, further, we must share in devising methods by which those decisions can be made wise and effective or, if need be, supplanted by others which promise greater wisdom and effectiveness. Now it is these activities, in all their diversity, whose freedom fills up "the scope of the First Amendment." These are the activities to whose freedom it gives its unqualified protection.

Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245, 255.

In this case Frontenac, in its effort to protect the security and privacy of its residents, has unduly intruded upon the rights of the plaintiffs and of Frontenac's residents¹¹  to engage in a free exchange of ideas on topics of social and political import; this is a right our predecessors deemed so valuable as to warrant constitutional protection.

Frontenac's ordinance unduly intrudes upon the first amendment rights of the plaintiffs; furthermore, Frontenac's objectives may be accomplished through means less restrictive of constitutional rights than the means embodied in the ordinance. Therefore, we hold Frontenac is enjoined from enforcing its ordinance to prohibit the plaintiffs from soliciting and canvassing between the hours of 6:00 p.m. and 9:00 p.m. on weekday evenings. The judgment of the district court is reversed.¹²