Political activists still oppose Chiu's handbill regulation

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Political activists say an anti-littering proposals raises free speech concerns.

Progressive political activists and First Amendment advocates continue to have concerns about how Sup. David Chiu's legislation to regulate handbill distribution will affect low-budget political campaigns, despite Chiu's efforts to address the criticism.

Two weeks ago, he delayed deliberation on the measure, saying it wasn't his intention to curtail political speech. The measure returns to the Board of Supervisors tomorrow (Tues/15), but the activists are asking that it be sent back to committee for more work.

Chiu and the Department of Public Works Menu and Flyer Littering Task Force introduced the legislation in an effort to clean up littering and to effectively penalize handbill distribution that doesn’t meet the new regulations of securing literature and ensuring it does not become litter. The new law would require handbills to be securely fastened on doorways or placed under doormats preventing them from becoming litter on the sidewalks and streets.

“You can’t just throw something on a stoop that can be blown away,” Catherine Rauschuber, one of Chiu’s legislative aides who worked on the measure, told us. Handbills can be anything from a menu for a local restaurant to a flyer promoting a community event to campaign advertising and political information. Newspapers are exempt.

But critics of the measure, including California First Amendment Coalition Director Peter Scheer, say it needs a lot more work to pass constitutional muster and safeguard free speech rights.

“The proposed amendment to the San Francisco ordinance is not a ‘reasonable’ regulation of handbills and leaflets because it leaves the distributor of such constitutionally protected materials in doubt as to how to comply,” he told the Guardian. “Specifically, the materials are required to be ‘secured.’ However, the most efficient means of doing so—using tape or other adhesive—is itself prohibited.”

Littering a neighborhood with unsecured handbills is already a criminal infraction, one that is rarely enforced, and Chiu's legislation would make it an administrative penalty managed at the discretion of DPW. Rauschuber said the penalty would usually be a fine of around $100.

The DPW requested the authority to administer the penalties because it wasn’t a priority of the District Attorney's Office to prosecute violators, and DPW officials said it would be more effective in lowering the instances of littering, Rauschuber told us.

Political activists such as Karen Babbitt worry about the effect the new legislation will have on grassroots campaigns. She believes that the language of the ordinance creates a disadvantage to political candidates with low-budget campaigns.

“If you place a piece of literature under a doormat and it still somehow ends up on the sidewalk, the campaign can be fined,” she told the Guardian. “I can't think of a way that I, as a volunteer, could prove that I'd initially placed the piece of lit securely. I try to place them securely, but the wind sometimes still blows them away—especially in windy neighborhoods like Diamond Heights.”

The board's Land Use and Economic Development Committee approved the measure on Jan. 24, and while political activists say it needs more work, those concerned about litter welcome the change.

Dawn Trennart, a member of the Middle Polk Neighborhood Association and the Menu and Flyer Littering Task Force, saw the handbills become a litter problem in her neighborhood last spring and brought it to Chiu's attention.

“It is a litter and security problem,” said Trennart said. “The handbills get stuck in doors and cannot lock properly.”

The law would also allow buildings to post a smaller “no handbills” sign with 30-point font, instead of the current requirement of eight square inches, to prohibit distribution. Babbitt believes the ordinance is superfluous to the efforts political volunteers already make.

“Most folks I've volunteered with over the years already try to place pieces of literature in ways that keep them from blowing away. It makes your candidate look bad, after all, to have her or his literature blowing all over the neighborhood,” she said.

But she and other activists complain that the new law would presume the campaigns are guilty without offering proof. Scheer also pointed to a 1943 U.S. Supreme Court ruling in the case of Martin v. City of Struthers, which found that litter is not a compelling enough argument to regulate handbill distribution.

Scheer believes that, in order to satisfy the First Amendment, the ordinance should not only state what handbill distributors cannot do, but also state what they can do to avoid penalties, which is commonly called a “safe harbor” provision.

Still, political activists complain that they were not involved in the drafting of the ordinance. While the Sierra Club, ACLU, SF Labor Council, and other groups that distribute political handbills were not consulted, the activists note that Golden Gate Restaurant Association and other business groups were brought in to help shape the legislation.

By asking for the measure to be sent back to committee, where public testimony is taken, the political activists hope their concerns will finally be addressed.

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