L IN THE SUPREME COURT OF OHIO
WILLIAM F. REDDY, Case No. 2013-1148 Plaintiff-Appellant, On Appeal from the V. Cuyahoga County Court of Appeals, Eighth Appellate District THE PLAIN DEALER PUBLISIIING CO., Court of Appeals Case No. 98834 Defendant-Appellee.
MEMORANDUM OF APPELLEE PLAIN DEALER PUBLISHING COMPANY IN RESPONSE TO APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION
Mary C. Sotera (0036784) Michael K. Farrell (0040941) Westoxl Hurd LLP Counsel of 'Record The T'ower at Erieview Melissa A. DeGaetano (0080567) 1307 East 9t" Street, Suite 1900 Baker & Hostetler LLP Cleveland, Ohio 44114-1862 PNC Center (216) 687-3285 (Telephone) 1900 E. 9'h Street, Suite 3200 (216) 621-8369 (Facsimile) Cleveland, Ohio 44114-3482 Email: msoteraCawestonhurd.com (216) 621-0200 (Telephone) (216) 696-0740 (Facsimile) Michael A. Dolan (0051848) Ernail: rnfarrell,,_f bakerlaw.com The Dolan Law Firm, LLC Email: [email protected] 3890 Rocky River Drive Suite 2S Attorneysfir Defendant-,4ppellee Cleveland, Ohio 44111 Plain Dealer Publishing Co. (216) 780-3036 (Telephone) (216) 671-8289 (Facsirnile) Erzlail: [email protected]
Attorneys_for Plaintiff Appellant Williczna F Reddy
^ ,:.f ri-, ;, :., ... ., ^ :. ;;. €.wRA (S=^Jr^ ^<< TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...... ii
THIS APPEAL DOES NOT PRESENT ANY ISSUE OF GENERAL OR PUBLIC INTEREST AND IT DOES NOT INVOLVE ANY SUBSTANTIAL CONS'ITI'UTIONAL QUESTION ...... ,...... 1
COUNT'ER-STATEIVIENT OF THE FACTS AND THE CASE ...... 4
1. Appellant received the PD IVRA.P-UP at his home for more than a year without abjecting ...... 5
2. The trial court and the Eighth District both considered and rejected each of the arguments Appellant repeats here ...... :...... ;. 6
RESPONSE TO APPELLANT'S PROPOSITIONS OF LAW ...... 7
Response to Appellant's First Proposition of Law ...... 7
The rule Appellant proposes would eliminate the doctrine of implied consent and make trespassers out of girl scouts, political canvassers and those who distribute religious information ...... 7
2. Appellant's first proposition of law violates the First Amerzciment ...... 9
3. The cases Appellant cites do not support bis proposition of law ...... 10
Response to Appellant's Second Proposition of Law...... 12
1. Contrazy to Appellant's unsupported assertion, no statute is needed to protect `The Plain Dealer's delivery of PD WRAP-U'P to him ...... 12
2. The First Amendment cases Appellant cites in support of his second proposition of law are also inapplicable ...... 13
3. The Plain Dealer was not required to knock or ring Appellant's doorbell...... 14
CONCLUSION ...... 14
i TABLE OF AU'THOkITIES
Page(s) CASES
Ad World, Inc: v. Township of Doylestown, 782 F.2d 1136 (3rd Cir. 1982) ...... 9
Apel v. Katz, 83 OhioSt.3d 11, 697 N.E.2d 600 (1998) ...... ,...... 7
Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993) ...,...... 4
In re: C. P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729 ...... , ...... 4, 11
Cincinnati v. Thompson, 96 Ohio App. 3d 7, 643 N.E.2d 1157 (1st D'zst.1994) ...... ,..6, 13
Ctizens for a Better Environment v. Park Ridge, 567 F.2d 689 (7th Cir. 1975) ...... ,...... 8
City of Watseka v. Illinois Pub. Action Council cznd ACL U, 796 F.2d 1547, aff'd 479 U.S. 1048 (1987)...... 9
Conway v. Calbert, 119 Ohio App. 3d 288, 695 N.E.2d 271 (lOth Dist. 1997) ...... 3, 8
Dickinson v. Charter Oaks Tree & Landscaping Co., 10th Dist. Franklin No. 02AP-981, 2003-Ohio-2055 ...... 8 Donner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235 ...... I1
Easttivood Mall v. Slanco, 68 Ohio St.3d 221, 626 N.E.2d 59 (1994) ...... ;...... ,....11, 13
Internatl. Soc. for Krishna Consciousness, Inc: v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed.2d 541 (1991) ...... 13
Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L.Ed.2d 332 (1979) ...... ,.11
Krafi Const. Co. v. Bd of Comni'd°s, 128 Ohio App. 3d 33, 713 N.E.2d 1075 (8th Dist.1998) ...... 1, 7, 8
Leyse v. Donaino's Pizza, LLC, 853 N.Y.S.2d 38 (2008) ...... 3
ii Lovell v. Griffin, 303 U.S. 444, 58 S. Ct. 666„ 82 L. Ed. 949 (1938) ...... ,..10
.Hansfield Balliet, 65 Ohio St. 451, 63 N.E. 86 (1902) ...... ,...... :....11
Martin v. City of S'traithers, 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed. 1313 (1943) ...... passiha
Herrill v. C?DNR, 130 Ohio St.3d. 30, 2011-Ohio-4612, 955 N.E.2d 935 ...... 10
Misseldine v. Corporate Investigative Ser°vs. Inc., 8th Dist. Cuyahoga No. 81771, 2003-Ohio-2740 ...... 8
Moore v. City oof Hidctleton, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977 ......
North lersey ]Vewspapers Co. v. Borough of Kenilworth, 254 N.J. Super. 166, 603 A.2d 124 (1991) ...... 9
NoYwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115 ...... 10
Reddy v. Plain Dealer Puhl'g Co., 8th Dist. Cuyahoga No. 98834, 2013-Ohio-2329 ...... passini
Reeves v. Fox Television Network, 983 F. Supp. 703 (N.D.Ohio 1997) ...... 8
Rhines v. Bailiss, 140 Ohio Misc. 2d 5, 2005-Oh.io-7160, 865 N.E,2d 963 (M.C.)...... 3
Schultz v. Elm Beverage Shoppe, 40 Ohio St.3d 326. 533 N.E.2d 349 (1988) ......
Sexton v. Mason, 117 Ohio St.3d 275, 2008-Ohio-858, 883 N.E.2d 1013 ......
State v. Smorgala, 50 Ohio St.3d 224, 553 N,E.2d 672 (1990) ...... 12
Statesboro Publ'g Co. Inc. v. City of'Sylvania, 271 Ga. 92, 516 S.E.2d 296 (1999) ...... :...... 9, 14
Valley Ry. Co. v. Franz, 43 Ohio St. 623, 4 N.E. 88 ( 1885) ...... >...... 11
iii Van Nuys Publ 'g Go. v. City of'7'housand Oaks; 5 Ca1.3d 817, 489 P.2d 809 (1971) ...... 9
Watchtower Bible & Tract Society of 1Vew York, Inc. v. Village ofStrcztton, 536U.S. 150, 122 S. Ct. 2080, 153 L. Ed.2d 205 (2002)...... ,...... 10
Zimmerman v. i/illage o.fLondon, Ohio, 38 F. Supp. 582 (S,D.Ohio 1941) ...... :...... 3
OTEiER A;UTHQR.ITIES
75 Azn.Jur.2d Trespass § 73 (2009). ....,...... 7
Restat 2d of Torts, § 330 ...... 7
iv THIS APPEAL DOES NOT PRESENT ANY ISSUE OF GENERAL OR PUBLIC INTEREST AND IT DOES NOT INVOLVE ANY SUBSTANTIAL CONSTITUTIONAL QUESTION
Plaintiff-Appellant William Reddy claims that Defendant-Appellee Plain Dealer
Publishing Company trespassed by delivering a free newspaper to him each Sunday for a year.
During that entire time, Appellant never notified The Plain Dealer that the newspapers were unwelcome. Appellant never posted signs prohibiting trespassing, deliveries, or solicitations; he never called the cancellation number on the newspaper's front pa..ge; and he never contacted the independent distributor to ask that the deliveries cease. When Appellant filed suit - the first and only notice that Appellant did not want the newspaper - The Plain Dealer immediately stopped delivering the newspaper to him.
Thus, the only substantive issue considered below was whether delivery of a free newspaper, without any objection by the homeowner, can be a trespass. The U.S. Supreme
Court long ago made clear that the answer is NO: it is not a trespass because publishers have a
First Amendment privilege to distribute written materials to residences unless and until they are expressly asked by the homeowner to stop, iY£artin v. City of,Struthers, 3 ) 19 U.S. 141, 63 S. Ct.
862, 87 L. Ed. 1313 (1943). Separate and apart from the foregoing, under long-settled Ohio common law of trespass, such deliveries are not a trespass because homeowners are held to have consented to the delivery of information to their homes unless and until they have expressly objected to it. Id. And, under Ohio law, a homeowner also consents to an entry onto his property when, like Appellant here, he knows about the entry but says or does nothing about it week after week for more than a year.'
'See, e.g., Kraft C'nnst. Co. v. Bd. ofomnz'rs•, 128 Ohio App. 3d 33, 42-43, 713 N.E.2d 1075 (8th Dist.1998) (landowner consented to regular intrusion onto his property for two years by not objectizig before filing a lawsuit). The decisions of the courts below simply applied these well-settled principles to the undisputed facts of this case, were correct, and offer no reason for this Court's review. In contrast, Appellant's propositions of law ask this Court to ignore seventy years' worth of federal constitutional precedent, abrogate at least that many decades of well-reasoned Ohio common law, and place Ohio at odds with every other court in the country to have decided the issue.
Appellant incorrectly asserts that the decisions below "judicially altered" the common law and "license previously unpermitted conduct." (Memo. 1.) In an attempt to support this notion, Appellant falsely argues that the Struthers court "expressly required the [distributor] to aff iiiiatively ascertain the householder's interest in receiving a particular political or religious message in advance." (Memo. 3.) This is simply wrong. In the Supreme Court's own words:
Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. 'rhe dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.
Traditionalky the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states, while similar statutes of narrower scope are on the books of at least twelve states more. We know of no state which, as does the Struthers ordinance in effect, make a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away. * * * A city can punish those who call at a home in defiance of the previously expressed will of the occupant and, in addition, can by identification devices, control the abuse of the privilege by criminals posing as canvasers. In any case, the problem must be worked out by each community for itself with due respect for the constitutional rights of those desiring to distribute literature and those desiring to receive it, as well as
^ those who choose to exclude such distributors from the home.
The Struthers ordinance does not safeguard these constitutional rights. For this reason, and wholly aside from any other possible defects, on which we do not pass but which are suggested in other opinions filed in this case, we conclude that the ordinance is invalid because in conflict with the freedom of speech and press.
Struthers; 319 U.S. at 147-149, 63 S. Ct. 862, 87 L. Ed. 1313 (Emphasis added, citations
omitted).
Thus, Str•uthers does not subordinate the First A-niendment to the common law of
trespass, as Appellant claims. Quite to the contrary, Struthers expressly holds that, "without an
explicit command from the owners to stay away," the First Amendment bars the prohibition or
punishment of the distribution of written materials to private residences, Id. at 148-149.2In the
seventy years since Struthers, courts in Ohio and around the country have held without exception
that prior "notice [is] required by defendant's constitutional right of free speech."3 Reversal of
the decisions below would thus violate the United States Constitution.
2 Of course, the imposition of civil liability for such conduct is every bit as uiiconstitutional as passing a statute prohibiting it. .Iti'AACP v. Claiborne Hardware Co., 458 U.S. 886, 916 n. 51, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982) (the application of state common law by state courts in a manner alleged to restrict First Amendment freedoms is impermissible "state action" under the Fourteenth Amendment); New York 7"imes v. Sullivan, 376 U.S. 254, 265, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) (same; "It matters not that that law has been applied in a civil action and that it is common law only."). J Leyse v. Domino's Pizza, LLC, 853 N.Y.S.2d 38, 38 (2008) (upholding dismissal of a class action complaint based on the delivery of pizza flyers to apartments because plaintiff never asked not to receive them). See e.g., Contivay v. Calbert, 119 Ohio App. 3d 288, 295, 695 N.E.2d 271 (10th Dist. 1997) (party failed to establish the elements of trespass when distributor delivered plastic bags of advertisements inside an apartment complex because the distributor was never put on notice that the deliveries were not wanted); Rhines v. Bailiss, 140 Ohio Misc. 2d 5, 8, 2005- Ohio-7160, 865 N.E.2d 963 (M.C.) (a Jehovah's witness, whiledistributhlg religious literature, was not a trespasser under Ohio law, as she had a qualified right to be on defendant's property for that purpose); Zimnaernzan v. Village of London, Ohio, 38 F. Supp. 582, 584 (S.D.Ohio 1941) (enforcing ordinance premised on trespass tlieory "amounts to a denial of freedom of the press
3 Moreover, the result Appellant seeks would defy common sense and be profoundly bad
policy. As the Eighth District pointed out, "there are a variety of activities (which may or may
not concern printed materials) involving an entry into private properties without a prior consent
of the property owner, for example, campaign workers delivering candidates' literature or girl
scouts selling cookies." Reddy v. Plain Decrlet• Publ'g Co., 8th Dist. Cuyahoga No. 98834, 2013-
Ohio-2329, Ti 22. Reversing the decisions below "would turn various groups of citizens who
similarly distribute literature door to door without specific consent from the homeowners into
trespassers" in violation of this country's "well-accepted and time-honored practice" of allowing
the "door to door distribution of circulars." Id. at ^,, 23.
As this Court has repeatedly held, the United States Constitution "provides a floor below
which state court decisions may not fall ."4 Because Appellant seeks to alter the con-imon law in
a way that would improperly infringe First Amendment rights, and turn decades of well-reasoned
Ohio common law on its head, this Court should decline jurisdiction.
COUNTER-STATEMENT OF THE FACTS AND THE CASE
The PD WRAP-UP is a weekly newspaper distributed on Sundays in selected areas. As
the Eighth District noted, the PD WRAP- U"is comprised of three pages of newspaper content -
primarily lifestyle articles - and a crossword puzzle, along with a Parade magazine and
advertisements." Reddy, 2013-Ohio-2329,'^ 17. It is delivered in a translucent recyclable bag.
Id. atT 3. Printed prominently on the front page of each edition of the PD ZVR.AP-U', and visible through the plastic bag it comes in, are local and toll-free telephone numbers for those who prefer not to receive the PD TVR.AP-UP to call if they want to stop delivery. Id. and of the right of free speech, rights guaranteed by the Constitution and protected against state infringement by the Fourteenth Amendment"); see also cases cited infra, p. 9-10. 4 In re: C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 59 (quoting Arnold v, Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993)).
4 1. Appellant received the PD WRAP-UP at his horrte for more than a year without objecting.
Appellant's memorandum contains a number of factual inaccuracies, the most significant
of which is this: contrary to his unsupported assertion, The Plain Dealer did not have actual
knowledge that the PD WRAP-UP was not wanted. Rather, Appellant admitted in a sworn
interrogatory response that the only way he ever objected to receiving PD WRAP-UP's delivery
was by filing this lawsuit:
16. State whether you ever communicated to defendant, in any way, that you objected to its delivery of PD WRAP-UP to or onto your property, or to defendant's entry onto your property (if any such entry occurred) for that purpose. If your answer is affirmative, for each such communication, state tvith specificity the date, time, place and manner of the communication, and the identity of each individual present at the time of the communication. If the communication was in the form of a sign posted on your property, indicate the size and color of the sign, the size and color of the sign's lettering, the wording of the sign, and describe with specificity where the sign was posted, and the dates during which it was posted.
ANSWER: Yes, I filed the Arzthin lawsuit.
(R1U Ex. 3, Pltf. Int. Ans, t6.) Appellant later confirmed under oath at deposition that he never
asked The Plain Dealer to stop delivering the PD WRAP-UP:
Q: Did you ever contact anybody at the Plain Dealer to ask that the deliveries of the PD WRAP-UP cease? A: No.
Q: Did you ever call the number provided on the front page of the PD WRr1P-UP? A: No. Q: So you did not contact the PD WRAP-UP or the Plain Dealer in any way to cancel receiving the paper, correct? A: No, I never - Q- You never contacted anybody? A: (Indicating.)
(R14, Pltf, Dep. 12:20-13:14.) Thus, for over a year, Appellant received the P1711'RAP-UP each Sunday without ever
notifying The Plain Dealer in any way that the deliveries were unweicome. Tnstead, he filed a
lawsuit. As soon as The Plain Dealer learned (by being served) that Appellant did object, it
immediately stopped deliveries of the PD WRAP- UP.
2. The trial court and the Eighth District both considered and rejected each of the arguments Appellant repeats here.
Appellant first filed this case in November 2010. The parties filed cross-motions for
summary judgment and Appellant voluntarily dismissed his claim in September 2011, after
briefing was complete and a decision was imminent. A few months later, Appellant re-filed his
trespass claim and The Plain I)ealer again moved for summary judgment.
The trial court correctly granted The Plain Dealer's motion for summary judgment based
on its clear First Amendment right to distribute news and information. In its seven-page opinion,
the trial court carefully considered and rejected each of the arguinents Appellant later raised in
the Eiglith District and now repeats here. Specifically, the trial court: (1) correctly rejected
Appellant's reading of Martin v. City ofStr•ztthers, 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed. 1313,
(2) correctly distinguished Cincinnati v. Thompson, 96 Ohio App. 3d 7, 643 N.E.2d 1157 (1 st
Dist.1994) because Appellant never objected to delivery of the PD WRAP-UP to hi_m, and (3)
properly distiziguished the various, inapplicable property rights cases cited by Appellant because
they do not involve speech. Reddy v. Plain Dealer Pziblishing Co., Cuyahoga C.P. No. 12-CV-
773256 (July 20, 2012).
On appeal, the Eighth District unanimously affirmed, holding that "The Plain Dealer's
distribution of The PD Wrap-up, in the absence of a previously expressed will of the resident objecting to it, enjoys the privilege derived from the First Amendment and is not considered by law as committing the tort of trespass." Reddy, 2013-Ohio-2329, Ti 15. The Eighth District
6 stated further that: "regardless of whether The Plain Dealer's conduct in delivering a free publication to households without first obtaining consent is protected under the First
Amendment, such an activity falls under the class of activities where consent could be implied from community custom and tradition, in the absence of an explicit command to stay away." Id. at¶23.
ItESPOIVSE TO APPELLANT'S PROPOSITIONS OF LAW
Appellant's Proposition of Law 1\To. 1: lndividual property rights, including the right of quiet enjoyment in one's land, are fundamental, sacrosanct and inalienable and unless otherwise altered by statute, the common law of trespass requires a party seeking to enter upon and utilize the land of another to first obtain consent from the owner.
Appellant's first proposition of law --- that the common law of trespass requires a party to
"first obtain consent from the owner," - is in fact, the exact opposite of Ohio common law as reflected in decades of well-reasoned decisions. And, Appellant's Proposition No. l is especially incorrect where, as here, fundamental First Amendment rights are at stake. In suppoz-t of this incorrect proposition, Appellant grossly misstates the holding in Struthers, cites to plainly irrelevant cases, and exaggerates the holding and import of the Eighth District's decision below.
None of Appellant's arguments offers any reason for this Court to review his trespass claim.
1. The rule Appellant proposes would eliminate the doctrine of implied consent and make trespassers out of girl scouts, political canvassers and those who distribute religious information.
A trespass plaintiff must prove that the defendant physically entered private premises
"without authority or privilege." Apel v. Katz, 83 Ohio St.3d 11, 19, 697 N.E.2d 600 (1998)
(Emphasis added). While prior express consent is one type of privilege, the common law recognizes many other forms of privilege to enter that Appellant's first proposition of law asks this Court to eliminate, See, 75 Am.Jur.2d. Trespass § 73 (2009); Restat 2d of Torts, § 330, cmt e
(trespass consent may be implied from conduct, custom or usage).
7 As the courts below correctly held., Appellant's consent to receive the PD WRAP-UP may
be implied from his conduct and from community custom. Appellant consented to delivery of
the PD WRAP-UP by his knowing failure to object to its delivery for over a year. See Kraft, 12$
Ohio App. 3d at 42-43, 713 N.E.2d 1075 (landowner consented to regular intrusion onto his
property for two years because he did not object until filing a lawsuit).5 Like the landowner in
Kraft, Appellant witnessed the deliveries of PD WRAP-UP every week for over a year but did
not notify The Plain Dealer of any objection prior to filing suit.
Appellant's consent may also be implied from community custom. "At common law, the
presence of a kzlocker or a. bell on the door signified a license to attempt entry, preventing, in the
absence of notice or order to the contrary, initial entry by solicitors and peddlers from being a
trespass." Conway, 119 Ohio App. 3d, at 295, 695 N.E.2d 271 (citing Citizens fora$etter
Environrnent v. Park Ridge, 567 F.2d. 689, 691 (7th Cir. 1975)). Applying this concept of
implied consent to the distribution of advertisements on private property, the Conway court held
that a party failed to establish trespass because the distributor of advertisements was never put on
notice that the deliveries were not welcome. .Id.; see also, Strutliers, 319 U.S., at 147-148, 63 S.
Ct. 862, 87 L. Ed. 1313 (tradition in America is that one who enters the property of another for
an innocent purpose is not a trespasser without owner's explicit command to stay away).
Appellant's own admissions here demonstrate that The Plain Dealer had a license to
distribute the PD WRAP-UP to him. Appellant had a custom of allowing people on his property
s See also, Dickinson v. Charter Oaks Tree & Landscaping Co., 10th Dist. Franklin No. O2AP- 981, 2003-Ohio-2055 (spouse of landowner consented to trespass when he personally witnessed it and did not object); Reeves v. Fox T elevision Network, 983 F. Supp. 703, 712 (N.D.Ohio 1997) (by leaving house door open in response to police coming to the door, plaintiff impliedly consented to a camera crew entering the property because he did not object);1llisseldine v. Corporate Investigative ^S'ervs. Inc., 8th Dist. Cuyahoga No. 81771, 2003-Ohio-2740, 1,1 29 (citing Reeves and stating that it "is true" that consent to trespassing may be implied). to deliver packages and mail all the way to his front porch. (R14, Pltf. Dep. 10:6-16.) Appellant
kept a doorbell bv his front door signifying to all who passed that they had a license to attempt to
gain entry. (R14, Pltf. Dep. 9:24-10:2.) He never erected any signs prohibiting trespassers or
solicitors, or otherwise put The Plain Dealer on notice that its deliveries were not welcome.
(R10 Ex. 3, Pltf. Int. Ans. No. 16; R14, Pltf. Dep. 10:3-5; 13:7-13.) Thus, as the Eighth District
properly fourid, even without reference to the First Amendment, The Plain Dealer's conduct did
not constitute a trespass under the common law.
2. Appellant's first proposition of law violates the First Amendment.
As set forth supra, p. 2-3 (discussing Appellant's misconstruction of Struthers), The First
Amendment prohibits conditioning distribution of printed material on the prior express consent
or invitation of the property owner or occupant. As the T'hird Circuit explained, the right to
distribute and receive information is so vital to our society that the IJ.S. Supreme Court has
repeatedly "impose[d] on the potential listener some of the costs of this important freedom." Ad
WWorlcl, Inc. v. Township oj'Doylestown, 782 F.2d 1136, 1141 (3rd Cir. 1982). Thus "proper
accoinmodation of the competing First Amendment and privacy values at issue requires that the
initial burden be placed on the homeowner to express his objection to the distribution of
material." Van Nicys Publ'g Co. v. City of Thousancl Oaks, 5 Cal.3d 817, 826, 489 P.2d 809
(1971).
Courts around the country have repeatedly held that "house-to-house distribution of
written material constitutes one of the principal means of implementing the First
Amendment right of communication," and historically "have afforded constitutional protection
9 to such distribution." Id., at 82 3(Empllasis added). For this reason, courts routinely reject laws
placing restrictions on door-to-door distribution as unconstitutional.6
Importantly, The Plain Dealer's rights are not the only First Amendment rights at stake.
The Struthers rule protects not only the publisher's right to distribute information, but also the
public's right to receive it. Strttthers, 319 U.S, at 147, 63 S. Ct. 862, 87 L. Ed. 1313 (citing
Lovell v. G°i ffin, 303 U.S. 444, 452, 58 S. Ct, 666, 82 L. Ed. 949 (1938)).7 Appellant's first
proposition of law, if accepted, would thus infringe not only The Plain Dealer's First
Amendment right to distribute PD WRAP-UP, but also the rights of all those who wish to receive
it and all those who engage in this country's time-honored practice of distributing religious,
political or commercial infon-nation door to door. See Struther•s; 319 U.S. at 145-146 ("[d]oor to
door distribution of circulars is essential to the poorly financed causes of little people").
3. The cases Appellant cites do not support his proposition of law.
Although Appellant cites several cases touching on property rights, none of them even
arguably supports the rule he seeks. For example, Appellant cites: Moore v. City o,fViddleton,
133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977 (concerning an appellant's standing to
6 See, e.g., City of Watseka v. Illinois Pub. Action Council crnd ACLU, 796 F.2d 1547, aff'd 479 U.S. 1048 (1987) (ordinance limiting door-to-door soliciting to hours between 9:00 a.m. and 5:00 p.m. Monday through Saturday violated First and Fourteenth Amendments); Statesboro Publ'g Co. It2c. v. City of Sylvania, 271 Ga. 92, 95, 516 S.E.2d 296 (1999) (requiring papers to be placed on doorknobs or in mailbox hanging devices imposes an unreasonable regulation on distribution and violates First Amendment); Noi°th Jersey NewspapeNs Co. v, Borough of Kenilworth, 254 N.J. Super. 166, 167, 603 A.2d 124 (1991) (anti-littering statute that prohibited tossing newspapers onto lawns of homes interfered "with the freedom of speech and press"). 7 In the seventy years since Struthers was decided, the Supreme Court has not overruled itself on this issue. In fact, in Watchtower Bible & Tract Society of New York, Inc. v. Village of Strutton, 536 U.S. 150, 122 S. Ct. 2080, 153 L. Ed.2d 205 (2002) (which Appellant cites in his Memorandum at p. 3), the Supreme Court expanded the First Amendment's protection of door- to-door distribution. See, id. (striking down an Ohio ordinance requiring door-to-door solicitors to obtain permits before canvassing because it could reduce speech protected by the First Amendment).
10 oppose the government's decision to re-zone adjacent property); Norwood v. Hory2ey, 110 Ohio
St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115 (addressing whether a city could take tlae
appellants' homes (and demolish them) through eminent domain when the area they were located
in was not yet a"shuxl" or "blight," but merely a "deteriorating area"); lVlerrill v. ODNR, 130
Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935 (a riparian rights case addressing whether Lake
Erie's boundary is the "shoreline" per property owner's deeds, or the "ordinary high water
mark," per the Ohio Department of Natural Resources); Donner v. Zody, 130 Ohio St.3d 446,
2011-Ohio-6117, 958 N.E.2d 1235 (deciding whether and when a goveriu.nent action that causes
flooding on private property is a taking). None of these cases even discusses civil trespass, let
alone supports the requirement of prior express consent that Appellant asks this Court to create
here.8
Appellant also tries to support his misreading of Struthers with a string citation to eight
wholly irrelevant cases, none of which has anything to do with the Struthers decision or the facts
here. (See Memo. at 8.) Only one of those cases, EasN,ovd Mall v. Slanco, 68 Ohio St.3d 221,
626 N.E.2d 59 (1994), even involved the First Amendrn.ent, but it is wholly inapplicable here
because it involves a speaker who persisted over the lando`vners' objection. The rest have
nothing whatsoever to do with the issues here. Indeed, the only proposition that any of these
cases actually stand for - that Ohio recognizes and values private property rights - is an
° Also irrelevant are: Kaiser Aetna v. (Jnited Stcztes, 444 U.S. 164, 100 S. Ct. 383, 62 L.Ed.2d 332 (1979) (addressing whether man-made marina constituted "navigable waters" subject to Artny Coips regulation); Vcrlley Ry. Co. v. Franz, 43 Ohio St. 623, 4 N.E. 88 (1885) (discussing statute of limitations for damage caused by water diverted onto plaintiff's property);1k!fansfreld Balliet, 65 Ohio St. 451, 63 N.E. 86 (1902) (riparian rights case that does not contain the word "trespass"); Sexton v. Mczson, 117 Ohio St.3d 275, 2008-Ohio-858, 883 N.E.2d 1013 (applying discovery rule for statute of limitations purposes in a continuing trespass case involving water); In re C.P., 131 Ohio St3d 513, 2012-Ohio-1446, 967 N.E.2d 729 (eonstitLitionality of a sex offender statute).
11 irrelevant truism. Of course Ohiorecognizes private property rights; however, for seventy years
and in dozens of cases (which Appellant ignores), courts have balanced those rights against
equally treasured First Amendment rights by requiring that homeowners first object to the
delivery of a publication before claiming it a trespass. Struthers, 319 U.S. 141, 63 S. Ct. 862, 87
L. Ed. 1313.
In short, none of the cases Appellant cites for his first proposition of law is even remotely
on point and they offer no reason for the Court to review this case.
Appellant's Proposition of Law No. 2: The First Amendment does not create a privilege to force commercial speech upon a private property owner in his home.
Appellant's second proposition of law asks this Courl to overthrow decades' worth of
well-settled First Amendment decisions recognizing a publisher's right to distribute infortnation
from. house to house absent the homeowner's objection. Appellant offers no reason for Ohio to
abandon this long-held principle or put itself at odds with the United States Supreme Court and
every other court in the country to consider this issue.
1. Contrary to Appellant's unsupported assertion, no statute is needed to protect The Plain Dealer's delivery of PD WRAP-UP to him.
Appellant's curious theory that The Plain Dealer's rights under the First Amendment are
somehow required to be "set forth by statute" in order to protect its delivery of PD YVrap-UP
requires only a brief response. None of the cases Appellant cites support the notion that a
privilege must be set forth in a statute to exist, and that is not true.9 Obviously, the fact that
some privileges are statutory does not mean, as Appellant argues, that all privileges must be
g For example, State v. Smorgalu, 50 Ohio St.3d 224, 225, 553 N,E.2d 672 (1990) concerns a court's ability to modify the testimonial privilege that arises from a doctor-patient relationship. Schultz v. Elm Beverage Shoppe, 40 Ohio St.3d 326, 533 N.E.2d 349 (1988) examines whether a convenience store could be liable to its patron for injuries sustained during an armed robbery.
12 statutory. And, of course, the protections afforded by the First Amendment to the federal constitution exist separate and apart from any statute.
2. The First Amendment cases Appellant cites in support of his second proposition of law are also inapplicable.
Appellant next posits that the Eighth District's decision "contravenes ... prior decisions recagnizing that the First Amendment rigiit to communicate and persuade does not include the right to trespass." (Memo. at 12.) Once again, the cases Appellant cites do not support his theory.
In the first set of cases Appellant cites, the publishers sought the right to distribute information over the property owner's previously voiced objection.10 No such activity is at issue here. Contrary to Appellant's rhetoric, The Plain Dealer did not force its message on anyone, take anyone's property, or engage in any tortious activity. The undisputed fact is that the PD WRf1P-(IP was never delivered to Appellant over his objection. As such, these cases do not apply.
The remaining First Amendment cases Appellant cites hold simply that the First
Anlendment does not give the press greater First Aniendment rights than are afforded others.
But again, that is not the issue here. Under Supreme Court and Ohio law, any speaker - religious or secular, private or public, individual or corporation - has the right to distribute information from house to house until asked to stop. The decisions below did not grant The Plain Dealer any special treatment or exception from that rule.
10 S°ee e.g., Eastwood Mull, 68 Ohio St.3d 221, 626 N.E.2d 59 (enjoining a picketer who repeatedly engaged in demonstrations at a private mall over the mall-owner's express objection); Cincinnati v. Thompson, 96 Ohio App. 3d 7, 16, 643 N.E.2d 1157 (abortion protestors refused to leave a privately owned medical clinic after being asked to do so); Internati. Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed.2d 541 (1991) (whether an airport can deny Krishnas' request to solicit donations within a terminal).
13 3, The Plain Dealer was not required to knock or ring Appellant's doorbell.
Lastly, Appellant argues that the Eighth District's decision "obliterates the so called
`door bell' rule by holding that distribution of materials upon a householder in a home is licensed
by the presence of a doorbell." (Memo. at 14.) This argument is just another repetition of
Appellant's misconstruction of Struthers. As Struthers makes clear, Appellant's so-called
"doorbell rule" that Appellant seeks to invent simply does not exist. See infta p. 2-3 and p. 9-
10. i i Struthers has been cited by courts over 1600 times, yet Appellant has not identified a
single decision that supports his claim that Struthers requires publishers to seek permission prior
to distributing newspapers or other material. C.f. Statesboro Publ'g Co.; 271 Ga. 92, 516 S.E.2d
296 (striking down (without reference to doorbells) an ordinance that prohibited distribution of
free printed materials in yards, driveways or porches because such an ordinance violates the
freedom of speech and press under the United States Constitution).
CONCLUSION
Appellant tries to make much of the Eighth District's use of the word "novel" in its
opinion. (See Memo. at 1.) But the only novelty the Eighth District found was in Appellant's
theory that delivering a free newspaper to him without his ever objecting could somehow
constitute a trespass. There is nothing new or incorrect in the well-settled law precluding that
claim and that the Eighth District unanimously relied upon. Reddy, 2013-Ohio-2329, ¶ 10.
Under Ohio common law, and as a matter of federal constitutional law, The Plain
Dealer's conduct in causing a free newspaper to be delivered to Appellant does not constitute a
trespass. In seeking this Court's review, Appellant asks this Court to overturrr decades of
iI Appellant made this same argument to the trial court and the Eighth District, but in his trial court brief he called it the "Struthers duty." No matter what label he puts on this made-up theory, it contradicts the plain language of the United States Supreme Court, and has not been recognized by any court to consider the issue.
14 established federal constitutional and Ohio law, to make trespassers out of anyone who approaches a residence for an innocent purpose, and to place Ohio directly at odds with the U.S.
Supreme Court and every other court in the nation. Appellant's petition for jurisdiction should be denied.
Respectfully submitted,
^ i Michael K. Farrell (0040941) Melissa A. DeGaetano (0080567) BAKER & HOSTETLER LLP PNC Center 1900 E. 9'h Street, Suite 3200 Cleveland, Ohio 44114-3482 (216) 621-0200 (Telephone) (216) 696-0740 (Facsimile) Email: [email protected] Email : mdeg ae tanokbakerlaw.com-
Attorneys for Defendant-Appellee Plain Dealer Publishing Coinpany
15 CERTIFICATE OF SERVICE
A copy of the foregoing Memorandum of Appellee Plain Dealer Publishiiig Company in
Response to Appellant's Memorandum in Support of Jurisdiction has been sent by regular U.S. , mail, postage prepaid, this /S "day of August, 2013 to the following:
Mary C. Sotera, Esq. Weston Hurd LLP The Tower at Erieview 1301 East 9tn Street, Suite 1900 Cleveland, Ohio 44114-1862 (216) 687-3285 (Telephone) (216) 621-8369 (Facsimile) Email: [email protected]
Michael A. Dolan, Esq. The Dolan Law Firm, LLC 3890 Rocky River I3rive Suite 2S Cleveland, Ohio 44111 (216) 780-3036 (Telephone) (216) 671-8289 (Facsimile) Email: nidolan3 @att.net
Attorneys @r Plaint%ff-Appellant YVilliarn F. Redclj,
One of the Attorneys for Defendant-Appellee Plain Dealer Publishing Co.
16