Legal Update: July 2009

From the Legal Hotline

Here are some questions received recently from various newspapers in calls to the legal hotline (877-NEWSLAW) and the answers. We encourage members to use this free service for any legal questions that arise in your day-to-day operations. If we don't know the answer, we have outside counsel with specific expertise who usually will know.

Q. A senior former employee on a fixed income would like to volunteer her time at the newspaper to do office work like filing and bookkeeping. Can the newspaper legally allow her to do this?

A. No. While it seems OK to accept this offer to help, the individual's services would not be considered "voluntary services" and would be compensable under the Fair Labor Standards Act. The general rule is that volunteers may provide services that are exempt for civic, religious, charitable or humanitarian reasons; however, the service that a volunteer performs must not replace or impair employment opportunities of others by performing work that would otherwise be performed by regular employees.

In this case, although the employee's motives are sincere, the services would not be rendered for any civic or charitable reason but instead to a profit-seeking entity. The Department of Labor likely would find that this individual is in fact a company employee and subject to wage and hour regulations of the law.

As a general rule, it is often hard to decide if a particular relationship is one of volunteerism even where the company is a nonprofit entity. Where the company is for-profit, it will be rare indeed that a volunteer arrangement can exist.

Q. From time to time, city or county governments try to enact ordinances that seek to regulate how the newspaper is delivered (wrapping, placement, etc.). What are the general rules surrounding this issue?

A. The general rule is that while the city or county can impose reasonable restrictions in furtherance of its police powers (cleaning up litter), "a regulation must be narrowly tailored to serve a significant government interest and must leave open ample alternative channels of communication." And, "a regulation is narrowly tailored when it does not burden substantially more speech than is necessary to further the government's legitimate interests." Hayes County Guardian v. Supple, Fifth Cir. Ct of Appeals (1992).

A notable case on this issue was issued by the Supreme Court of Georgia in Statesboro Publishing Co. v. City of Sylvania (1999). That case dealt with an ordinance that sought to place restrictions on how a newspaper could be delivered. The court made several points in striking down the ordinance.

1. The requirement that newspapers and printed matter be wrapped and placed on the door or under the mat imposed substantial and prohibitive costs on the newspaper for an important means of communication.

2. The City had other ways to prevent litter caused by the home delivery of papers without unreasonably infringing on freedom of speech or the press. The City, for example, could require the publisher to retrieve papers that residents do not pick up in a timely manner, prosecute the publisher for papers found littering the streets or drainage ditches, or punish residents who fail to pick up litter in their own yards.

3. The restriction shut down a lot of speech in pursuing the goal of cleaning up litter. For example, the ordinance would theoretically apply to the following situations where literature was being distributed: a candidate with a door-to-door campaign for political office, the Jehovah's witness who canvasses about his religious beliefs, the environmental activist who opposes construction of a landfill nearby, and the neighborhood newsletter that warns residents about recent burglaries in the area. Of course, under the proposed ordinance, the groups could hand the literature to the resident; but if they were not there, they would have to leave it and that meant it must be wrapped or placed there in a special way which seems to be a disincentive for the groups. There was a lot of potential speech being barred for what the City was trying to accomplish.

This is the sort of issue that a county or municipality will have to sort through in attempting to propose an ordinance regulating delivery of newspapers in public neighborhoods. It is best for newspapers to work proactively with the local authorities to reach a mutually acceptable solution to any litter or other issues before the ordinance writing stage. The newspaper obviously wants to avoid the bad result where the government enacts an overbroad or flat-out prohibition of the distribution of newspapers (except where property owner requests the paper).

Q. What about where the homeowner association tells the newspaper deliverer to stop distributing in a private community. What should the publisher do?

A. Surprisingly, there is not a lot of case law in this area. It really follows the trespass laws of the various states if there is nothing specific. Most newspapers maintain that they have the right to distribute in gated communities until told by the individual homeowner that they cannot. Some newspapers notify recipients that they can be placed on a do-not-throw list if they do not want the paper. That way, if the association complains, the newspaper can tell them there is such a list set up and it has been given to the independent contractor carrier to honor.

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