Albert Krantz v. City of Fort Smith

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 97-3359
___________

Albert Krantz, Ron Decker, *
Donald Sweat, on behalf of *
themselves and others similarly *
situated, *
*
Appellants, *
*
v. *
*
City of Fort Smith, Arkansas; *
City of Van Buren, Arkansas; *
City of Alma, Arkansas; City of *
Dyer, Arkansas, *
*
Appellees. *
* Appeal from the United States
------------------------------------- * District Court for the
* Western District of Arkansas
Albert Krantz; Ron Decker; *
Donald Sweat; on behalf of *
themselves and others similarly *
situated, *
*
Appellants, *
*
v. *
*
City of Alma, Arkansas; City of *
Dyer, Arkansas, *
*
Appellees. *
 ___________

Submitted: February 11, 1998

Filed: November 30, 1998
___________

Before McMILLIAN and HANSEN, Circuit Judges, and DAVIS,1 District Judge.
___________

McMILLIAN, Circuit Judge.

Plaintiffs, members of the Twentieth Century Holiness Tabernacle Church (“the
Church”) who allegedly have been arrested or threatened with legal injury pursuant to
any of four specific municipal ordinances2 (collectively referred to as “the ordinances”),
appeal from final judgments entered in the United States District Court for the Western
District of Arkansas, dismissing with prejudice their action pursuant to 42 U.S.C.
§ 1983 against the Cities of Alma, Dyer, Fort Smith, and Van Buren, Arkansas
(collectively defendants). Krantz v. City of Alma, Nos. 95-2135/95-2136 (W.D. Ark.
Nov. 27, 1996) (Krantz) (judgment dismissing with prejudice complaint against Alma,
Dyer, and Van Buren); id. (July 30, 1997) (memorandum opinion and judgment
dismissing with prejudice complaint against Fort Smith). The district court granted
summary judgment for defendants on plaintiffs’ First Amendment claims seeking a
declaration that the ordinances are unconstitutional because they prohibit plaintiffs from
placing religious literature under the windshield wipers of unattended vehicles parked

1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota, sitting by designation.
2
Alma, Ark., Ordinance No. 83-3; Dyer, Ark., Ordinance No. 83-4; Fort Smith,
Ark., Municipal Code, art. III, § 14-51; and Van Buren, Ark., Ordinance No. 5-1983.

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on public property. Id. (Nov. 27, 1996) (memorandum opinion) (hereinafter “slip op.”).
For reversal, plaintiffs now argue that the district court erred in holding as a matter of
law that the ordinances (1) are not facially invalid on First Amendment overbreadth
grounds, (2) are not unconstitutional as applied to plaintiffs, and (3) were not enacted
with a discriminatory purpose. In addition, defendant the City of Dyer challenges
plaintiffs’ standing. For the reasons stated below, we hold that plaintiffs have standing
to sue the City of Dyer. We further hold that the ordinances are unconstitutional
because they are facially overbroad restrictions on free speech. Accordingly, we do not
reach the remaining issues raised on appeal. The judgments of the district court are
reversed, and the case is remanded to the district court for further proceedings
consistent with this opinion.

Background

Each of the ordinances makes it a misdemeanor for any person to place a
handbill or advertisement on any other person’s vehicle parked on public property
within city limits, unless an occupant of the vehicle is willing to accept the handbill or
advertisement. For example, the Van Buren ordinance provides in relevant part:

SECTION 3. It shall be unlawful for any person to place or deposit
any commercial or non-commercial handbill or other hand-distributed
advertisement upon any vehicle not his own, or in his possession, upon
any public street, highway, sidewalk, road, [or] alley within the City of
Van Buren, providing, however, that it shall not be unlawful upon any
such street or other public place for a person to hand out and distribute to
the receiver therefor, any handbill to any occupant of the vehicle that is
willing to accept it.

Slip op. at 10 (quoting Van Buren, Ark., Ordinance No. 5-1983).3

3
The ordinances of the other three defendants contain substantially the same
language as Section 3 of the Van Buren ordinance. Krantz v. City of Alma, Nos. 95-

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 According to plaintiffs, “[i]n their effort to ‘preach the gospel to every living
person in the earth,’” associates of the Church distribute religious literature by placing
handbills under the windshield wipers of unattended parked cars. Brief for Appellants
at 2. Plaintiffs filed this action for declaratory and injunctive relief and damages
pursuant to 42 U.S.C. § 1983, alleging that the ordinances are facially unconstitutional,
that they are selectively enforced only against members of the Church, and that they
were enacted with the discriminatory purpose of stopping the Church’s handbilling
activities, in violation of plaintiffs’ First Amendment rights of free speech and free
exercise of religion. The district court certified a plaintiff class, defined as individuals
who have been arrested, have been threatened with arrest, or have refrained from
distributing handbills because they reasonably believe they will be arrested under one
of the ordinances. Plaintiffs moved for declaratory judgment, and defendants filed
cross-motions for judgment on the pleadings and summary judgment. Plaintiffs
thereafter amended their complaint, adding two new claims. Defendants then filed
motions for judgment on the pleadings or partial summary judgment addressing
plaintiffs’ newly added claims.

By orders dated November 27, 1996, and July 30, 1997, the district court
granted defendants’ motions for judgment on the pleadings and summary judgment and
denied plaintiffs’ motion for declaratory relief, which the court treated as a motion for
judgment on the pleadings. The district court held that defendants were entitled to
judgment as a matter of law on plaintiffs’ claim that the ordinances are facially invalid
on overbreadth grounds. The district court reasoned:

The Court is not altogether comfortable with the notion that these
ordinances actually regulate handbilling – and, therefore, speech or

2135/95-2136, slip op. at 10 n.1 (W.D. Ark. Nov. 27, 1996) (memorandum opinion)
(hereinafter “slip op.”).

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 expression. To the contrary, the Court believes these ordinances regulate
the conduct of littering – the physical act of throwing down or depositing
a piece of paper on public and private property. Nevertheless, since the
Court believes that the effect of the ordinances – at least to some limited
extent – can be construed as a limitation on handbilling activities, and
since handbilling is an expressive activity protected by the First
Amendment, the Court is of the view that the ordinances have some
impact on expressive conduct.

Slip op. at 11.

The district court went on to state that it would analyze the First Amendment
overbreadth issue using the constitutional standard applicable to public forums because
the ordinances appeared to regulate both public and private forum speech. Id. at 14-15.
The district court noted that written forms of expression in public forums are subject
to reasonable time, place or manner restrictions, but that the restrictions must (1) be
content-neutral, (2) be narrowly tailored to serve a significant governmental interest,
and (3) leave open ample alternative channels of communication. Id. at 15. The
district court first determined that the ordinances are content-neutral. Id. at 16. The
district court next concluded that the ordinances are narrowly tailored to serve a
significant governmental interest. On that point, the district court noted that, although
defendants are not required to show that their ordinances are the least restrictive means
of accomplishing their objectives, they may not regulate expression so as to
substantially burden more speech than necessary to advance legitimate governmental
interests. Id. at 17 (citing Ward v. Rock Against Racism, 491 U.S. 781, 798-800
(1989) (Ward)). The district court opined that the prevention of litter is a legitimate
governmental interest, id. at 19 (“It can certainly be said – without much danger of
contradiction – that unsightly litter is blight in this country the eradication of which
requires the expenditure of limited local government resources and presents a myriad
of public health and safety concerns.”), and then went on to hold that “the ordinances
are narrowly tailored to achieve a significant government interest.” Id. at 20. Turning

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to the third and final requirement, the district court determined that the ordinances leave
open ample alternative channels of communication because “[t]he alternative channels
of communication are numerous and none have been foreclosed by defendants’
ordinances.” Id. at 21. Accordingly, the district court concluded, “plaintiffs’
overbreadth claims against defendants are without merit.” Id. at 22.

The district court further held that defendants are entitled to judgment as a matter
of law on the issues of whether the ordinances are unconstitutionally vague, id. at 23-25,
whether they regulate religious conduct within the meaning of the free exercise clause,
id. at 25-26, and whether they are unconstitutional as enacted or applied, id. at 26-28;
Krantz, slip op. at 5 (July 30, 1997) (addressing claims against Fort Smith). After the
district court entered judgment for defendants, plaintiffs appealed the district court’s
disposition of the First Amendment issues. Defendants have resisted plaintiffs’ appeal
on the merits and, as noted above, the City of Dyer has additionally challenged
plaintiffs’ standing.

Discussion

Plaintiffs’ standing to bring claims against the City of Dyer

The City of Dyer argues that plaintiffs lack standing to sue Dyer because no one
from the Church has been arrested, has been threatened with arrest, or has refrained
from handbilling because of the Dyer ordinance. Under the standard applicable to this
type of First Amendment challenge, we hold that plaintiffs have standing to sue the City
of Dyer for violating their First Amendment rights. Plaintiffs in the present case allege
that, as part of their religion, they believe in, and engage in, the practice of distributing
religious literature throughout the world and that they have refrained from leaving
literature on unattended parked cars within the City of Dyer because they fear
prosecution. Members of the Church have in the past engaged in the precise activity
banned by the Dyer ordinance and, although no criminal proceeding is pending in Dyer,

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plaintiffs have presented evidence that members of the Church fear arrest or the threat
of arrest should they engage in such activity in Dyer. See, e.g., Appellants’ Appendix
at 74, 236, 239. The Dyer ordinance is virtually identical to those of the other
defendants and, in fact, has been jointly defended with two of the other ordinances
challenged in this litigation. We assume the City of Dyer would prosecute violators of
its ordinance, given the opportunity, because it has vigorously defended the ordinance
and has never suggested that it would refrain from enforcement. See Virginia v.
American Booksellers Ass’n, 484 U.S. 383, 393 (1988) (“The State has not suggested
that the newly enacted law will not be enforced, and we see no reason to assume
otherwise.”).

When no state criminal proceeding is pending at the time the federal
complaint is filed, federal intervention does not result in duplicative legal
proceedings or disruption of the state criminal justice system; nor can
federal intervention, in that circumstance, be interpreted as reflecting
negatively upon the state court’s ability to enforce constitutional
principles. In addition, while a pending state court prosecution provides
the federal plaintiff with a concrete opportunity to vindicate his
constitutional rights, a refusal on the part of the federal courts to intervene
when no state proceeding is pending may place the hapless plaintiff
between the Scylla of intentionally flouting state law and the Charybdis of
forgoing what he believes to be constitutionally protected activity in order
to avoid becoming enmeshed in a criminal proceeding.

Steffel v. Thompson, 415 U.S. 452, 462 (1974).

Thus, upon careful review, we hold that plaintiffs have standing to bring this
declaratory judgment action to challenge the Dyer ordinance because they have alleged
and have sufficiently demonstrated an actual and well-founded fear that the law in
question will be enforced against them. See id. (plaintiffs have standing to challenge
facial validity of regulation, notwithstanding pre-enforcement nature of lawsuit, where

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they allege an actual and well-founded fear that the law will be enforced against them);
cf. Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 198 (5th Cir. 1984)
(holding that plaintiff church has standing to bring facial challenge to state statute under
free exercise clause based upon “personal stake in the constitutionality of the [state]
statute because enforcement of that statute will directly affect the freedom with which
its members may fulfill their professed religious commitment”). We now turn to the
merits of this appeal.

Facial challenge on First Amendment overbreadth grounds

Because the material facts relevant to plaintiffs’ overbreadth challenge are not in
dispute and were sufficiently set forth in the pleadings, it was appropriate for the district
court to dispose of that issue on the parties’ cross-motions for judgment on the
pleadings.4 We now review de novo the district court’s decision to grant judgment on
the pleadings for defendants. Franklin High Yield Tax-Free Income Fund v. County of
Martin, 152 F.3d 736, 738 (8th Cir. 1998) (grant of judgment on the pleadings reviewed
de novo). The question before the district court, and now before this court on appeal,
is whether the ordinances are unconstitutionally overbroad and thus facially invalid as
a matter of law.

Plaintiffs argue that defendants have failed as a matter of law to satisfy their
burden of showing that the ordinances are narrowly tailored to serve a significant
governmental interest and that they leave open ample alternative channels for
communication of the same information. Plaintiffs suggest that defendants are
precluded as a matter of law from relying on litter prevention as the basis for imposing
a complete ban on plaintiffs’ First Amendment activity. Plaintiffs cite, among other

4
Plaintiffs filed a motion for declaratory judgment seeking a ruling that the
ordinances are, as a matter of law, unconstitutionally overbroad and therefore facially
invalid. Slip op. at 3. The district court elected to treat plaintiffs’ motion as one for
judgment on the pleadings. Id. at 4.

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cases, Schneider v. New Jersey, 308 U.S. 147, 162-63 (1939) (Schneider) (“[T]he
purpose to keep the streets clean and of good appearance is insufficient to justify an
ordinance which prohibits a person rightfully on a public street from handing literature
to one willing to receive it.”).

In response, defendants argue that the ordinances are not inconsistent with the
Supreme Court’s holding in Schneider because the activity addressed in that case (i.e.,
handing out leaflets person-to-person to willing passersby) differs significantly from the
act of leaving a handbill on an unattended parked vehicle. Defendants further argue that
nothing in the ordinances prevents plaintiffs from engaging in the type of handbilling
protected under Schneider. Defendants also contend that there is no connection
between the physical act of putting a handbill under the windshield wiper of a parked
vehicle and the freedom to speak, write, print, or distribute information or ideas, which
plaintiffs may do by numerous other means. While defendants concede that public
streets and parking lots are public forums, they maintain that they have both the duty
and the power to regulate activities affecting the safety and aesthetics of such public
areas through direct or indirect regulation. In sum, they contend that the ordinances are
narrowly tailored to serve a significant governmental interest and that the ordinances
leave open ample alternative channels for communication.

We find it unnecessary to repeat the district court’s thorough and instructive
summary of the legal landscape in this First Amendment free speech context. Slip op.
at 6-9 (discussing, among other cases, Members of City Council v. Taxpayers for
Vincent, 466 U.S. 789 (1984)). We also agree with the district court that plaintiffs’
overbreadth challenge is governed by the line of cases addressing reasonable time,
place, or manner restrictions. See id. at 15. The three-part test for determining the
constitutionality of a time, place, or manner restriction is accurately stated in the district
court’s opinion. See id. (citing City of Cincinnati v. Discovery Network, Inc., 507 U.S.
410 (1993) (Discovery Network); Ward, 491 U.S. at 798; United States v. Kistner, 68
F.3d 218, 221 (8th Cir. 1995)). While we further agree with the district court’s

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assessment that the ordinances are content-neutral under the first prong of the
“reasonable time, place, or manner” test, we part company with the district court at the
second stage of the inquiry. For reasons discussed below, we hold as a matter of law
that the ordinances are not narrowly tailored to serve a significant governmental interest.

“‘[T]he requirement of narrow tailoring is satisfied so long as the regulation
promotes a substantial interest that would be achieved less effectively absent the
regulation’ and the means chosen does not ‘burden substantially more speech than is
necessary to further’ the city’s content-neutral interest.” Excalibur Group, Inc. v. City
of Minneapolis, 116 F.3d 1216, 1221 (8th Cir. 1997) (Excalibur Group) (quoting Ward,
491 U.S. at 799 (internal quotations omitted)), cert. denied, 118 S. Ct. 855 (1998). In
considering whether the narrow tailoring requirement has been met in the present case,
we are of the view that the Supreme Court’s holding in Schneider is not directly on
point, but is highly instructive. In Schneider, 308 U.S. at 162-63, the Supreme Court
held that the governmental interest in preventing litter was insufficient to justify an
ordinance that would have prohibited individuals from handing out literature to those
willing to receive it. The Court in Schneider went on to note that a city has the power
to punish individuals who throw leaflets on the ground, as opposed to those who hand
leaflets out. Id.; accord Jews for Jesus, Inc. v. MBTA, 984 F.2d 1319, 1324 (1st Cir.
1993) (“littering is the fault of the litterbug, not the leafletter”). The Supreme Court
then concluded in Schneider that “the public convenience in respect of cleanliness of the
streets does not justify an exertion of the police power which invades the free
communication of information and opinion secured by the Constitution.” 308 U.S. at
163.

Not long after Schneider was decided, the Supreme Court considered the
constitutionality of an ordinance which made it unlawful in Struthers, Ohio, for any
person to distribute to a person within a residence a handbill, circular, or advertisement,
by knocking on the door or ringing the bell of the residence. Martin v. City of

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Struthers, 319 U.S. 141 (1943) (Martin). The appellant in Martin, a follower of the
Jehovah’s Witnesses, was convicted of violating the Struthers ordinance and was
ordered to pay a fine after she knocked on the door and summoned the resident of the
home for the purpose of distributing religious literature. Id. at 142. The City of
Struthers asserted that its ordinance advanced its legitimate governmental interests in
protecting citizens from being disturbed in their homes and preventing burglars or other
criminals from using such acts as a pretense for criminal activity. Id. at 144. The
Supreme Court declared the Struthers ordinance facially invalid because it was not
narrowly tailored to serve the city’s legitimate goals. The Supreme Court observed:
“While door to door distributors of literature may be either a nuisance or a blind for
criminal activities, they may also be useful members of society engaged in the
dissemination of ideas in accordance with the best tradition of free discussion.” Id. at
145. The Supreme Court observed: “[t]raditionally the American law punishes persons
who enter onto property of another after having been warned by the owner to keep off.”
Id. at 147. Similarly, the Supreme Court suggested, a regulation could make it unlawful
to ring the bell of a householder who has indicated a desire not to be disturbed. Id. at
147-48. The Supreme Court concluded:

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. The 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.

....

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

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 identification devices control the abuse of the privilege by criminals posing
as canvassers. 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 distributers from the home.

Id. at 146-47 (footnote omitted); accord Rowan v. United States Post Office Dep’t, 397
U.S. 728 (1970) (upholding as constitutional under the First Amendment a federal
statute, enforceable by the Postmaster General, which allows householders to notify
senders of pandering advertisements that future mailings are not wanted).

In Van Bergen v. Minnesota, 59 F.3d 1541 (8th Cir. 1995) (Van Bergen), this
court considered the constitutionality of a regulation which banned certain automatic
pre-recorded telephone solicitations made by “automatic dialing-announcing devices”
or “ADADs.” Under the facts in Van Bergen, a recipient of an ADAD telephone call
had no means to reject the call beforehand or to notify the responsible party afterward
that future calls were unwanted. This court carefully distinguished the circumstances
of Van Bergen from Martin and held that the regulation was not unconstitutional.

Telephone calls from a live operator are more disruptive than door-
to-door solicitors warned not to disturb, because the recipient must
respond once to each caller. When the call is made by a live operator,
however, the recipient has the opportunity to tell the operator, at any point
in the conversation, that he does not want to hear from the calling person
or entity again. An ADAD does not offer the recipient the option of
cutting off the calls; it does not offer householders a choice of whether to
respond to the speaker or not. The ADAD recipient may hang up as soon
as the message starts, but has no opportunity to tell the machine that he
does not want it to call again, and may be obliged, against his will, to
respond over and over to the same unwanted caller.

....

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 Because ADAD calls intrude upon the privacy and tranquility of the
home and the efficiency of the workplace, and because the recipient has
no opportunity to indicate the desire not to receive such calls, we find
that the government has a substantial interest in limiting the use of
unsolicited, unconsented-to ADAD calls.

59 F.3d at 1555 (emphasis added) (footnotes omitted).

Thus, although “[w]e will not strike down a time, place, or manner regulation
merely because we can envision a less-restrictive or more effective means of furthering
the city’s content-neutral objectives,” Excalibur Group, 116 F.3d at 1221, the “narrowly
tailored” analysis, where appropriate, takes into consideration the opportunity for the
would-be recipient to provide effective notice that the communications are not wanted.
When that factor is considered in the present case, the balance tips in favor of striking
the ordinances as overbroad because those individuals who do not want handbills placed
on their vehicles can quite easily and effectively provide notice, for example, by placing
a sign on the dashboard.

In Bolger v. Youngs Drug Prods., 463 U.S. 60 (1983) (Bolger), the Supreme
Court revisited the issue of whether a governmental regulation was narrowly tailored
or burdened substantially more speech than necessary to further the underlying
governmental interest. Bolger involved a federal statute that prohibited the mailing of
unsolicited advertisements for contraceptives. The Supreme Court held that the statute
affected commercial speech and, although commercial speech is generally accorded less
constitutional protection than non-commercial speech, it nevertheless enjoys
“substantial protection.” Id. at 64-65, 68. The Supreme Court then observed:

[W]e have never held that the government itself can shut off the
flow of mailings to protect those recipients who might potentially be
offended. The First Amendment “does not permit the government to
prohibit speech as intrusive unless the ‘captive’ audience cannot avoid

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 objectionable speech.” Recipients of objectionable mailings, however,
may “‘effectively avoid further bombardment of their sensibilities simply
by averting their eyes.’” Consequently, the “short, though regular, journey
from mail box to trash can . . . is an acceptable burden, at least so far as
the Constitution is concerned.”

Id. at 72 (citations omitted). Addressing the regulation before it, the Supreme Court
noted that, although the ban on unsolicited contraceptives advertisements helped to
screen such materials from the view of children, this “marginal degree of protection”
required the government to screen the prohibited material from everybody’s mail, even
though such materials are “entirely suitable for adults.” Id. at 73. The Supreme Court
thus concluded “a restriction of this scope is more extensive than the Constitution
permits, for the government may not ‘reduce the adult population . . . to reading only
what is fit for children.’” Id. (quoting Butler v. Michigan, 352 U.S. 380, 383 (1957)).
The Supreme Court held that the regulation burdened substantially more speech than
necessary to further the underlying governmental interest.

Similarly, in the present case, the ordinances suppress considerably more speech
than is necessary to serve the stated governmental purpose of preventing litter. The
ordinances prohibit the placement of any handbill on any unattended vehicle, regardless
of whether the driver, owner, or an occupant might wish to receive the handbill and
notwithstanding the fact that some, if not most, people would not throw on the ground
papers left on their cars. While we have no difficulty concluding that the inconvenience
of having to dispose of unwanted paper “is an acceptable burden, at least so far as the
Constitution is concerned,” Bolger, 463 U.S. at 72, that minor inconvenience is not even
necessary in the present case because, like the householders in Martin and Rowen, those
who do not wish to be left with handbills can quite easily notify distributors of that fact.
As the Supreme Court reasoned in Martin and Schneider, defendants’ goal of preventing
litter can be accomplished by punishing the handbill distributors who defy such notices,
as well as the “litterbugs” who choose to throw

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papers on the ground. See Martin, 319 U.S. at 147 (“A city can punish those who call
at a home in defiance of the previously expressed will of the occupant.”); Schneider,
308 U.S. at 162 (“There are obvious methods of preventing littering. Amongst these
is the punishment of those who actually throw papers on the street.”).

Nor do we disagree with defendants’ assertion that they may, consistent with
prevailing constitutional standards, protect legitimate aesthetic and safety interests
through indirect regulations that impose some burden on speech. However, to do so,
defendants must demonstrate the existence of a “reasonable fit” between their asserted
goal and the means that they have selected to accomplish it. Discovery Network, 507
U.S. at 416 (“It was the city’s burden to establish a ‘reasonable fit’ between its
legitimate interests in safety and esthetics and its choice of a limited and selective
prohibition of newsracks as the means chosen to serve those interests.”). Thus, in
Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991), involving
a First Amendment free speech and free exercise challenge to a city’s zoning ordinance,
this court reversed the district court’s grant of summary judgment in favor of the
defendant city because there was insufficient evidence that the city had studied the
issues or found reliable evidence regarding the effect of the regulated activity (in that
case, the location of churches in the central business district) upon the governmental
interest presumably being harmed (economic revitalization).

In the present case, notwithstanding defendants’ evidence that government
officials received complaints about handbills left on cars and that the ordinances were
enacted for the purpose of preventing litter, defendants have not established a factual
basis for concluding that a cause-and-effect relationship actually exists between the
placement of handbills on parked cars and litter that impacts the health, safety, or
aesthetic well-being of the defendant cities. This flaw in defendants’ position provides
an alternative basis for reversing the district court’s grant of summary judgment for
defendants. Id. at 469 (“The City has not provided factual support for the assumptions
that underlie its exclusion of churches, and the alleged secondary effects of churches

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on commercial activity remain a disputed factual issue.”); cf. Excalibur Group, 116 F.3d
at 1221 (affirming grant of summary judgment for defendant where the record
“indicate[d] that the city had substantial evidence on which to base its conclusions about
the secondary effects of adults-only businesses.”). Even if we were to assume that a
logical connection exists between plaintiffs’ handbilling activities and the actual or
potential presence of litter on defendants’ streets, that correlation does not necessarily
mean the ordinances are narrowly tailored to serve the purpose of preventing litter.
Although a governmental restriction does not have to be the least restrictive or least
intrusive means of regulation, it may not, under well-established constitutional
standards, curtail substantially more speech than is necessary to accomplish its purpose,
which is precisely what the ordinances do.

Conclusion

We hold that the challenged portions of the ordinances are not narrowly tailored
to serve the governmental purpose asserted by defendants. Having therefore determined
as a matter of law that the ordinances are facially invalid on overbreadth grounds, we
need not address plaintiffs’ remaining arguments on appeal concerning their claims of
selective enforcement and discriminatory enactment. The judgments of the district court
are reversed, and this case is remanded to the district court for further proceedings
consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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