Further research into Junk Mail case law precedents.

We explore some of the legal angles that have been used to fight junk mail.

There are a number of cases (and a few federal statutes) which have addressed complaints by governmental entities and private citizens about unwanted commercial mailings.

Some federal statutes have attempted to provide means for mail recipients to stop delivery of materials of a salacious or sexual nature, but these have been fairly limited in scope.  Furthermore, many of these attempts to provide avenues for opting out have been challenged on a constitutional “free speech” basis.  Generally, commercial advertisers and publishers are deemed to have First Amendment protected rights to advertise by mail, although the courts around the country, including the United States Supreme Court, have found that this right does not allow a commercial advertiser or publisher to continue to bombard a homeowner once the homeowner has requested that the mailings be stopped.

Several cases have involved homeowners sueing marketers and advertisers in relation to unwanted mailings under the theories of trespass and nuisance, to some degree of success. 

United States Supreme Court Cases:

Generally, the cases we have reviewed hold that the unsolicited mailing of pamphlets by commercial advertisers and marketers is speech protected by the First and Fourteenth Amendments. The landmark case on this issue is Bolger v. Young Drug Prods. Corp., 463 U.S. 60, 103 S. Ct. 2875 (1983), wherein the United States Postal Service attempted to prevent the unsolicited mailings of contraceptive advertisements, under the authority 39 USC § 3001(c)(2), which stated that “[a]ny unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the postal service directs….” The contraceptive manufacturer sued the Postal Service, seeking declaratory and injunctive relief, arguing that the application of § 3001(c)(2) violated the First Amendment.

The district court found that the statutory prohibition was more extensive than necessary to the interests asserted by the Government, and that the statute’s ban on the mailings violated the First Amendment. On review, the United States Supreme Court affirmed, reiterating its position set forth in Bigelow v. Virginia, 421 U.S. 809 (1975), that First Amendment protection is generally extended to commercial speech. However, the Court also noted that commercial speech may be restricted when there is a substantial government interest. The Postal Service argued that § 3001(c)(2) shielded mail recipients from materials they were likely to find offensive, and aided parents in controlling the manner in which their children became informed about sensitive subjects such as birth control.

The Court noted that there is an important interest in allowing addressees to give notice to a mailer that they wish no further mailings which, in their sole discretion they believe to be arousing or sexually provocative. However, the Court also recognized that the First Amendment does not permit the government to prohibit speech as intrusive unless the captive audience cannot avoid the objectionable speech.  In the case of commercial mailings, the Court noted that recipients of objectionable mailings may effectively avoid further bombardment of their sensibilities by simply averting their eyes.  Furthermore, the “short, though regular, journey from the mail box to the trash can . . . is an acceptable burden, at least so far as the Constitution is concerned. Bolger, at 72; quoting Lamont v. Commissioner of Motor Vehicles, 269 F.Supp. 880, 883 (SDNY 1967).

It seems that this permissive view of commercial mailings does not extend to situations where the recipient has requested that the sender discontinue the mailings to the recipient’s address. In Rowan v. United States Post Office Dep’t, 397 U.S. 728 (1970), the appellant businesses claimed that 39 USC § 4009, which allowed householders to require removal of names from mailing lists, violated their rights pursuant to the First, Fifth and Fourteenth Amendments. The District Court for the Central District of California held that the statute was constitutional, and the businesses sought review of that judgment by the United States Supreme Court.

On review, the Supreme Court affirmed.  In so doing, the Court reviewed the background and congressional objectives of § 4009, explaining that it was a response to public and congressional concern about use of mail facilities to distribute unsolicited advertisements that recipients found to be offensive because of their lewd and salacious nature, and that such mail was found to be pressed upon minors and adults who did not seek it and did not want it.  Id. at 731. The appellant business argued that the statute violated their constitutional right to communicate, but the Court found that this right was outweighed by the rights of the recipients:

Weighing the highly important right to communicate, but without trying to determine where it fits into constitutional imperatives, against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee.

The Court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property.  See Martin v. Struthers, supra; cf.   Hall v. Commonwealth, 188 Va. 72, 49 S. E. 2d 369, appeal dismissed, 335 U.S. 875 (1948).  In this case the mailer’s right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.

To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home.  Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit; we see no basis for according the printed word or pictures a different or more preferred status because they are sent by mail. The ancient concept that “a man’s home is his castle” into which “not even the king may enter” has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another.  See  Camara v. Municipal Court, 387 U.S. 523 (1967).

Id. at 740 (bold emphasis added).

Applicable State Court Decisions from other Jurisdictions:

There have been similar holding in various state courts, although apparently none in the State of Alabama.  One case which is particularly similar to your fact situation is Tillman v. Distribution Sys. Of Am., 224 A.D. 2d 79 (N.Y. App. 1996), a case from New York.  In Tillman, the plaintiff residents complained that the defendant/appellant distribution company’s unsolicited newspapers, together with pull-out advertisements, were typically placed in a plastic bag and placed in their yards or driveways. The residents made repeated requests to the distribution company to stop leaving the papers on their yards and the distribution company promised to stop the deliveries.  However, despite these assurances, it became clear that the distribution company was either unwilling, as a matter of principle, or unable, as a matter of internal mismanagement, to comply with the requests.

The residents sought an injunction in trial court to restrain the distribution company from delivering the papers, as well as $500,000 in compensatory and statutory damages, as well as punitive damages. The residents filed for a summary judgment, which was granted by the trial court as to the residents’ first cause of action for a permanent injunction, but the court dismissed the second and third causes of action.

On appeal, the distribution company argued that the material it delivered was non-commercial speech and that the trial court’s injunction prohibiting delivery of the material constituted a state action which limited such speech and that this was an infringement upon their constitutional right of free speech. Relying heavily on Rowan, the appellate court held that the right to publish, distribute, and sell a newspaper did not correspond to the right to force others to read or buy whatever one has written.

 “The ancient concept that ‘a man’s home is his castle’ into which ‘not even the king may enter’ has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another” (Rowan v Post Off. Dept., 397 U.S. 728, 737, 25 L. Ed. 2d 736, 90 S. Ct. 1484, supra; see also, State v Casino Mktg. Group, 491 N.W.2d 882 [Minn Sup Ct]; H & L Messengers v City of Brentwood, 577 S.W.2d 444 [Tenn Sup Ct]; Van Nuys Publ. Co. v City of Thousand Oaks, 5 Cal. 3d 817, 97 Cal. Rptr. 777, 489 P.2d 809). “An individual’s right to communicate must be balanced against the recipient’s right ‘to be let alone’ in places in which the latter possesses a right of privacy” (People v Shack, 86 N.Y.2d 529, 536, 634 N.Y.S.2d 660, 658 N.E.2d 706, quoting Rowan v Post Off. Dept., supra, at 736). In accordance with this general principle, it has been held that a vendor has no right under the Constitution or otherwise to send unwanted material into the home of another, even if the flow of valid ideas is impeded by such prohibition. (Rowan v Post Off. Dept., supra).

Id. at 83 (bold emphasis added).  The Court further stated:

“Although accommodations between the values protected by these three Amendments are sometimes necessary, and the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.

[. . .]

The constitutional right of free speech does not correspond to the “right” to force others to listen to whatever one has to say.  By the same token, the right to publish, distribute, and sell a newspaper does not correspond to the “right” to force others to buy or to read whatever one has written, or to spend their own time or money unwillingly participating in the distribution process by which a newspaper travels from the printing press to its ultimate destination, i.e., disposal.

Id. at 87-88 (bold emphasis added).

A similar issue was addressed in Miller v. Distribution Sys. Of Am., 670 N.Y.S. 2d 668 (N.Y. 1997), another New York case involving the same distribution company defendant.  In that small claims matter, the plaintiff testified that he sent the defendant distribution company repeated notices to stop the delivery of unsolicited plastic wrapped parcels containing various items including advertisements and fliers, on his property, and that despite these notifications, defendant continued to deliver the unwanted parcels at his home. The distribution company admitted they had received the notices and had taken steps to ensure that no deliveries were made to plaintiff’s house. The plaintiff sought recovery for breach of contract and trespass.  Id. at 514.

The trial determined that the plaintiff failed to establish the existence of a contract between the parties, but did find that the distribution company trespassed on plaintiff’s property on three separate occasions by depositing circulars contrary to plaintiff’s express prohibition. The trial court further held that although plaintiff failed to prove actual damages, he was nonetheless entitled to nominal damages, and was awarded $1 for each act of trespass.  Id.

On appeal, the court found that the limited right to recover nominal damages in an action for trespass to real property is appropriate where needed to protect an important right, even in the absence of any substantial loss or injury.  Id. The court also upheld the right of a property owner to bar solicitors from his property, by order or notice, relying primarily on the decisions in Rowan and Tillman above.

In these types of cases, the courts seem to hold that publishers or advertisers are only liable for trespass where the homeowner has previously demanded that the publisher stop delivery, but the publisher refuses or fails to comply. For instance, in Reddy v. Plain Dealer Publ. Co., 2012 Ohio Misc. LEXIS 299 (Ohio July 20, 2012), the plaintiff sued defendant publishing company for trespass and nuisance for unsolicited deliveries of a weekly news wrap-up which was thrown on his front lawn.  Plaintiff asserted that the defendant never contacted him for permission to deliver the publication, but also admitted that he never contacted the defendant to instruct them to cease and desist delivery prior to the filing of his lawsuit. He also admitted that the only harm he suffered from the delivery of the publication was the inconvenience of having to pick it up and throw it in the garbage, and that damages are presumed in cases of trespass regardless of how slight the injury. Id. at **1-2. 

The publisher asserted that it has a privilege rooted in the First Amendment to distribute the publication absent a command from the homeowner to refrain from distributing the objectionable material.

In granting summary judgment in favor of the publisher, the court cited the United States Supreme Court case of Martin v. Struthers, 319 U.S. 141 (1943), wherein the Supreme Court struck down an ordinance that made it unlawful for any person to distribute handbills, circulars or other advertisements, to ring the doorbell, sound the door knocker, or otherwise summon the inmates of a residence to the door to receive literature the person is seeking to distribute.  In that decision, the Supreme Court provided the following reasoning:

The right of freedom of speech and press has broad scope. The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. This freedom embraces the right to distribute literature, and necessarily protects the right to receive it. This privilege may not be withdrawn even if it creates the minor nuisance for a community of cleaning litter from its streets. Citing Schneider v. State, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155. (emphasis added).

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….Traditionally 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, makes 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.

Id. at **3-4; quoting Martin, at 148 (emphasis original). The evidence in the Reddy case showed that the plaintiff never instructed the publisher that it was not permitted on his property or that he ordered it to cease and desist delivery. The evidence also demonstrated that upon learning of the plaintiff’s objection, the publisher ceased delivering to plaintiff.  Based on these findings, the publisher’s motion for summary judgment was granted.  Id. at *10.

Alabama Cases addressing Trespass and Nuisance:

While there is no Alabama case which directly addresses this issue, Alabama laws on trespass and nuisance, generally, may be favorable for a claim against a publisher or marketer who ignores a homeowner’s request to stop delivery of advertisements and publications.

Pursuant to Alabama law, trespass requires an intentional act by the defendant. In order for one to be liable to another for trespass, the person must intentionally enter upon land in the possession of another or the person must intentionally cause some ‘substance’ or ‘thing’ to enter upon another’s land. Russell Corp. v. Sullivan, 790 So. 2d 940 (Ala. 2001).

Typically, damages for trespass are based on ‘the difference in the reasonable market value of the property’ before and after the injury caused by the trespass. Johnson v. Martin, 423 So. 2d 868, 870 (Ala. Civ. App. 1982). When there is no actual damage to the real property resulting from the trespass, the owner of the property is entitled to nominal damages for the trespass. Johnson, 423 So. 2d at 870; Webb v. Knology, Inc., 164 So. 3d 613, 620  (Ala. Civ. App. 2014) (bold emphasis added).

Punitive damages are also available to a plaintiff in a trespass action, even if only nominal damages are awarded, if the trespass is attended by rudeness, wantonness, recklessness or an insulting manner or is accompanied by circumstances of fraud and malice, oppression, aggravation, or gross negligence. Rushing v. Hooper-McDonald, Inc., 293 Ala. 56 at 61, 300 So. 2d 94 at 98 (1974);  Downs v. Lyles, 41 So. 3d 86, 92 (Ala. Civ. App. 2009); Webb, at 620.

“Wantonness in a trespass action is established by the mere knowledge on the part of the defendant of his invasion of the plaintiff’s rights.” Calvert & Marsh Coal Co. v. Pass, 393 So. 2d 955, 957 (Ala. 1980). In Calvert, our supreme court determined that, after the plaintiffs in that case had notified the defendant that it was trespassing, “subsequent entries on the following days could be construed as wanton.“

Webb, at 620 (emphasis added).  All that need be shown to prove wantonness in a trespass action is knowledge on the part of the defendant of his invasion of the plaintiff’s rights.  Calvert and Marsh Coal Co., Inc. v. Pass, Ala., 393 So. 2d 955, 956 (1980); W.T. Ratliff Co. v. Henley, 405 So. 2d 141, 146 (1981).

“Nuisance” is defined by the Alabama Code as follows:

A “nuisance” is anything that works hurt, inconvenience or damage to another. The fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man.

Ala. Code § 6-5-120 (1975).  The term “nuisance” involves the idea of continuity or recurrence.  Banks v. Corte, 521 So. 2d 960 (Ala. 1988).  The Alabama Supreme Court has recognized that even a lawful and careful activity, when combined with culpable acts, constitutes a nuisance if the activity hurts, inconveniences, or damages the complaining party.  Tipler v. McKenzie Tank Lines, 547 So. 2d 438 (Ala. 1989); Russell Corp. v. Sullivan, 790 So. 2d 940, 951 (2001). 

Nuisances are also classified under Alabama law as either “public” or “private,” as explained in the Code:

Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals. Generally, a public nuisance gives no right of action to any individual, but must be abated by a process instituted in the name of the state. A private nuisance gives a right of action to the person injured.

Ala. Code § 6-5-121 (1975).  With regard to private nuisances, the Code provides that “a private nuisance may injure either the person or property, or both, and in either case a right to action accrues.”  Ala. Code § 6-5-124 (1975).

As a general rule, liability for damages caused by a nuisance does not depend upon proof of negligence and may exist even though there has been no negligence.  Terrell v. Alabama Water Service, 245 Ala. 68, 15 So. 2d 727 (1943); Hilliard v. Huntsville, 585 So. 2d 889, 892 (Ala. 1991). Also, the finding of the existence of a private nuisance is sufficient to support injunctive relief, and injunction is a proper remedy to abate a private nuisance. Baldwin v. McClendon, 292 Ala. 43, 50, 288 So. 2d 761 (1974); Southwestern Constr. Co. v. Liberto, 385 So. 2d 633, 635 (Ala. 1980).