Legal Questions About Leafleting
First of all, there is no reason to be afraid. As a group, we have leafleted many thousands of times. We have problems with security frequently, but only two of us have been arrested, and those were seasoned leafleters who decided to push the limits, including this instance. If you are asked to leave and do so, there should be no problem.
Most public colleges allow leafleting, so work under that assumption. At the same time, there is no reason to bring a lot of attention to yourself – especially because faculty, staff, and security often do not know what the actual rules are. If you are leafleting a school where you are unsure of the policy, keep moving, leaflet only during class changes, and only offer booklets to students.
Most schools allow students to leaflet, especially if they are affiliated with a student group. So, if you run across a student who says they are into animal protection, get their contact information in case you get stopped, and maybe they can help you.
Private Colleges and Universities
Although many private schools do not seem to mind leafleters, others do. It is a private school’s right to ask you to leave. Even if you are asked to leave, there might be a public sidewalk near the school where students walk. If there are none, try contacting an animal protection, environmental, or social justice group at the school to see if they can set you up to leaflet. If not, private schools normally allow non-students to rent a table in the student center for $25 – $50 at which you can give out literature. If you cannot afford this, contact us about sponsoring you.
Do not park your vehicle on a private school’s campus unless you have permission to be there.
Leafleting at Public Colleges 101
Other than an unusual law in New Jersey allowing the public to leaflet at Princeton University, there is no law that says public colleges must let people leaflet. Instead, there is the First Amendment to the Constitution of the United States that says the government cannot pass laws abridging the freedom of speech. So when the government does pass laws against it, or a college makes rules against it, people can challenge those laws or rules. When higher courts rule on those rules, we get legal precedents. Institutions usually do not give up power without a fight, and so many schools, especially smaller schools, do have rules against leafleting, especially in areas where they have not been challenged. Challenging such rules takes time as the law and court cases in a given area must be researched.
In the highest court ruling to date on leafleting on public college campuses, the 9th Circuit Court of Appeals ruled in Jones v. University of Arizona (1970) (p. 6 of PDF) that not only do non-students have the right to exercise free speech on public university campuses, the university has an obligation to provide individuals with police protection ensuring their ability to exercise their constitutional rights in public areas of the campus.
Wouldn’t life be great if schools and lower courts actually followed that ruling?!
Some do, but many do not. Reading the PDFs listed under Resources will go a long way in quickly informing you about your rights. Some activists carry copies when leafleting.
Free speech rulings normally come with some sort of qualification in which speech can be curbed if there is a compelling state interest. Over the years, schools have curbed speech more and more by claiming a bogus state interest. Unfortunately, lower courts have become more willing to uphold such time, place, and manner restrictions.
Larger schools that do not allow general leafleting in all public areas of campus will often have some sort of option, such as registering to leaflet and confining you to certain areas. You might have to give 24 to 72 hours notice (which is possibly unconstitutional but something with which most people can live). If the areas in which they allow leafleting do not give you reasonable access to the intended audience, contact us.
A college has little to lose in violating freedom of speech since most people will not be willing to get an attorney involved. If someone were to take them to court, it may be possible to win some damages and get a court injunction forcing them to allow you to leaflet in the future. We have taken one case to court and it was settled in our favor. We have also gotten broader access at many colleges (especially in California where the State Constitution upholds freedom of speech more so than does the U.S. Constitution).
If You Are Stopped on a Public Campus
If you have a problem with campus security, stay calm and polite. Stop leafleting immediately if you want to make sure you don’t get in trouble. What you should do after that will depend on whether you are:
- Leafleting near where you live and intend to return regularly.
If you get stopped and told you have to make prior arrangements to leaflet or table, get the info on making arrangements. Even when forced to table, most activists have found a way to hand out hundreds of brochures in a couple hours or less. If you make arrangements and find that their rules are too restrictive to reach many people, contact us.
- Leafleting while on tour and have only one day to be at a school.
In this case, you might first try to get sympathy by telling them you didn’t know you had to get permission and you have only this one day to leaflet. This worked one day at the University of Cincinnati. If that doesn’t work, you have nothing to lose in arguing that you have a first amendment right to be there. Sometimes it works. Talk to someone who can explain the policy to you. Often, a security guard doesn’t know the rules and you will be allowed to leaflet after talking to administration. Ask the school for a copy of their regulations. If the regulations state you cannot leaflet, then you should leave but get a copy of the regulations to pass on to us.
In both cases, it’s good to get contact info from any sympathetic students you might come across early in your leafleting session in case they can help you get permission if you get in a bind.
Money Makes the World Go Around
If all else fails, most schools allow vendors to table for a reasonable cost and in a good spot. You might even be able to negotiate the spot if you are paying. You can then stand next to your table and hand things out. If money is an issue, talk to us about sponsoring your table.
The law on whether you are required to show identification to the police or private security guards varies from location to location and from time to time, so we cannot give any specific legal advice. Generally, a police officer has to suspect you are involved in a crime to ask for identification, though trespassing could be considered a crime. One of our attorneys has suggested that it is good policy to show identification when asked. If a private security guard on a private campus asks for identification, you are *probably* within your rights to leave the campus rather than show identification.
Leafleting high school students before or after school is a great way to reach many open-minded youth. We aren’t allowed to leaflet on school property, but the public sidewalk adjacent to the high school is probably okay. We say “probably” because it’s possible that a city may have an ordinance prohibiting leafleting on the public sidewalks within a close distance to schools. However, in the specific locations we’ve researched so far, that hasn’t been the case (we have found some that prohibit solicitation, loitering, or noise, but that shouldn’t apply to leafleters). If someone challenges you it would be wise to research it, just on the chance that an anti-leafleting ordinance exists. If someone threatens you with arrest it’s best to move instead of getting arrested. We can always try to change the policy without anyone getting arrested. Vegan Outreach can help you too, just let us know.
How to Find Public Sidewalks
Leafleting is not allowed on school property, so the best place to leaflet is on public property near the main entrance (or sometimes further down the block, closer to a bus stop or subway entrance). If it seems obvious where the public sidewalks are, you can just show up and leaflet. Or here’s how to check where the public property is:
- Determine which county the school is in: http://quickfacts.census.gov/cgi-bin/qfd/lookup
- Google the phrase: “County Name property appraiser” to find the county’s property appraiser website (they have maps of properties along with their values for tax purposes). For instance, for Orange County, Florida, the first website listed is www.ocpafl.org
- Search by address or by map. Each county map is different, and some are more user-friendly than others. But after a few minutes you’ll be able to zoom into your area of interest and see the property lines. Usually you can click on properties to find the owner.
What the Law Says
The Supreme Court has ruled that leafleting is allowed on public sidewalks adjacent to the high schools as long as it doesn’t interfere with normal school activities. (Please note: it’s possible a city has a no-leafleting policy near the entrance because it causes congestion.) From City of Chicago v. Mosley (1972): http://openjurist.org/408/us/92/police-department-of-city-of-chicago-v-d-mosley
Without interfering with normal school activities, daytime picketing and handbilling on public grounds near a school can effectively publicize those grievances to pedestrians, school visitors, and deliverymen, as well as to teachers, administrators, and students. Some picketing to that end will be quiet and peaceful, and will in no way disturb the normal functioning of the school. For example, it would be highly unusual if the classic expressive gesture of the solitary picket disrupts anything related to the school, at least on a public sidewalk open to pedestrians.41 On the other hand, schools could hardly tolerate boisterous demonstrators who drown out classroom conversation, make studying impossible, block entrances, or incite children to leave the schoolhouse.42
If You Are Challenged
If someone tells you that you need to move across the street or down the block, first try to appease them by saying the students are really interested in the material and you’ll pick up any discarded literature. If you are told by an authority figure or security guard with the school that you cannot leaflet there, ask them what will happen if you continue doing so. If they say they will call the police, then you might just let them do that (and in many cases they won’t because they know the police will tell them you are within your rights). If a security guard tells you that he or she can arrest you themselves, then you might listen to them. And if the police come and tell you that you have to move, you might politely ask them to check with headquarters if you think they are open to doing this. If not, then you should follow their instructions.
You may want to print this policy statement to give to school officials if they question you. It was written by the Alliance Defense Fund about distributing DVD’s about abortion, but it also discusses brochures. http://www.heartchanger.com/pdf/ADF_Distribution_of_180.pdf
If you happen to leaflet in one of these cities, you might also print this off to help convince administrators or police.
- Birmingham, AL: Life Legal Defense Foundation wins settlements for abortion activists arrested for displaying signs and handing out literature on public sidewalks in front of high schools.
- Chicago, IL: 1972 case ruled prohibition of a single person picketing in front of school is unconstitutional because too broad.
- Florida State: Liberty Counsel Statement about leafleting near Florida schools.
Then in June 18, 2008, Gray v. Kohl , most of that law was struck down, except for part about crime about to be committed, harassment or intimidation.
- Key Largo, FL: Sidewalk in front of school. http://www.alliancedefensefund.org/News/PRDetail/1722http://oldsite.alliancedefensefund.org/userdocs/simpsonfactsheet.pdf
- New York, NY: 2005 settlement with NYC that allows leafleting on public sidewalks next to schools.
Also, print off these summaries for security or NYPD:
- Rockford, IL: 1972 case struck down anti-picketing ordinance.
- San Diego, CA: Guide for High School Leafleting.
- Washington State: ACLU says okay to leaflet in front of high school.
The following was written by Eugene Khutoryansky, an expert at convincing security and police to let him continue leafleting:
The U.S. supreme court has ruled that political speech does not count as “solicitation.” Therefore, even if there was an anti-solicitation ordinance passed by the city, they could only stop you from trying to sell a commercial product. It could not stop you from distributing Vegan Outreach material on a public sidewalk, as this clearly falls in the category of “political speech.”
In general, when dealing with management or security, I would recommend trying to avoid bringing up the fact that you have a legal right to leaflet, except as a last resort. Even if you are correct about your legal right to leaflet, stating this to them can initially make them even more determined to get rid of you, just to prove that they can. At this point, it becomes personal in their mind.
Instead of bringing up the legality of what you are doing, try to address their real concern. Often, they are just concerned about the litter your pamphlets will generate, and you can diffuse the situation by explaining that you will pick up all the litter.
And if the concern is not litter, it might be just that you might block traffic, or harass customers, etc. This too can be diffused by explaining what you plan to do, and demonstrating that you are a nice person.
If it does get to the point of having to discuss the legality of it, and the security guard you are speaking with is intransigent, insist they get their manager. If the manager insists that you do not have a right to be there, and you are sure you are correct, ask them to call the police. If the police officer tells you to move, and you know that he is clueless, politely ask him to check with his sergeant or lieutenant.
Usually, as you move up the chain, there will be at least one person who knows that you have a right to leaflet, and this will solve your problem. And often, it doesn’t take very long to clear this up.
While you are doing this, keep in mind that the police are NOT deliberately trying to be mean to you. They just happen to be making an honest mistake about the law, or an honest mistake about the property boundaries. (Or at least give them the benefit of the doubt that this is what is happening.)
If you’re still unable to resolve your issue, seasoned leafleter Jeff Boghosian has written this thorough piece on getting access for leafleting.
Notice to University Officials and Law Enforcement (PDF), 1996
Written by an attorney who helps Vegan Outreach. Since written, many lower courts have made rulings and their opinions vary from region to region.
Free Speech Activity and Objections by Individuals (PDF), 2008
American Liberties Institute memo regarding objections to animal rights literature on the grounds of it being obscene. This letter is intended for general informational purposes only. It is not intended to provide legal advice for a specific circumstance or to resolve a possible legal question. You should contact competent counsel to answer any specific legal questions in your situation.
Foundation for Individual Rights in Education
FIRE mostly concerns themselves with freedom of speech of students and faculty, but list some cases that apply to non-students.
If you are having repeated trouble in your city, this site might have the municipal codes. Select the city and then search for soliciting, distributing bills and/or leafleting. Print the ordinance and take it to show anyone who might try to stop you.
Parks v. City of Columbus, 2004
Highest court decision on leafleting in an area in which an event freely open to the public is being held.