Wdze#% 8002/2790 No o> 1 Romexr A, Zannocx Duveuas F Gansen Aaioant Atarney Gael rvowse Gen Conve tthe Genel Asebly anooa Benson Baars Karan Wine: onus A Kinane Chief Depuey Acomey Genera Karan M, Rows “Assgant Antaraeys Genera! Jom B. Hows} Depay woop Goel "Tyg ATTORNEY GENERAL OF MARYLAND Oprice of Counsst To Tz GBNsRaAL ASSEMDIY January 30, 2008 ‘The Honorable Tanya Shewell 322 House Office Building ‘Annapolis, MD 21401-1991 Dear Delegate Shewell: You have asked for advice conceming the constitutionality of House Bill 357, Consumer Protection - Unsolicited Print Publications - Prohibition on Delivery.” You have slso asked whether thebill would apply to election materils. tis my view that HB 337 does rot offend the First Amendment. It is further my view thet the bill would not apply to campaign material, but the bill could be amended so as to remove any doubt. House Bill 357 would prohibit a publisher from delivering, or causing to be delivered. an unsolicited print publication to a residential address unless the publication contains a cevain notice of a toll-free mimber that a resident may call to notify the publisher thet the resident does not wish to rcocive the publication. The bill further prohibits a publisher from _ delivering, or causing lobe delivered an unsolicited print publication to aresidential address tfter 7 days from the date the publisher receives notice that the resident does not wish te reovive the publication, Print publiceton is defined as “a circular, newspaper, magazine, paper, or booklet that is published at regular intervals and distributed to the public.” An ‘insolicited print publicstion is defined a a print publication delivered to a residential address dp Maryland without the prior consent ofthe resident, but does not include a saanple copy of a print publication under certain conditions. Delivery does not include delivery by means of BeUS Postal Service or private mail delivery service. A violation is an unfair or deceptive ‘rade practice under Title 13 of the Commercial Law Article and subject 1 iis enforcement provisioos. Further, « publisher who violates this section is subject to civil fine not exceeding $100 for each violation In Martin v. City of Struthers, 319 U.S. 141 (1943), the U.S. Supreme Court held that the Frat Amendment bars « municipality from prohibiting door-to-door solicitation, but dog Leaisuive Sanicns BUILDING + yo Senta Cincux- Avohnotst Martiano 31401 Mangler seriposbon Pax aoaybstot “TTD a10-al9oy: 30-970 501 ia =Dva go NUGLIY 40 301430 1098: LvtyT 800% /6z/90WdZetz 800z/nz/90 The Honorable Tanya Shewell Page 2 January 30, 2008 would not bar a law that would make it an offense to ring the dodrtell of a householder who has appropriately indicated that he is unwilling to be disturbed. Similarly, in Rowan v. United States Post Office Department, 397 U.S. 728 (1970), the U.S. Supreme Court held that the First Amendment was not violated by a law that permitted «person to designate senders from whom he or she no longer wished to receive mail. It is my view that the requirement for a toll-free mumber and the prohibition in HB 357 once notice is provided to the publisher serves the same funotion as the notice to the Post Office upheld in Rowan. The bill leaves it to the target of the communication, rather than the government, to determine which communications will be received and thus does not violate the First Amendment. Relying on Rowan, the New York Supreme Court held that neither a publisher nor a distributor has any constitutional right to continue to throw a newspaper onto the property of an unwilling recipient after having been notified not to do so. Tillman v. Distribution Systems of America, Inc,224 A.D.2d 79, 648 N.Y.S.24 630 (1996), Thus, it is my view that HB 357 would not violate the First Amendment. Election materials are not defined in the bill. “Campaign material” is defined in Flection Law Article, § 1-101(k) es “any material that: (@ contains text, graphics, or other images; (i) relates to a candidate, a prospective candidate, or tie approval or rejection of a question; and (ii) is published or distributed.” ‘While campaign material may be distributed more than once during a campaign, it is generally not distributed at regular intervals like circulars, newspapers, and magazines. Thus, itis my view that the bill would not apply to campaign material. Of course, the bill could be amended to remove any doubt. F hope this is responsive to your inquiry. Sincerely, Bonnie A. Kirkland ‘Assistant Attomey General BAK-es 20/28 Wd NaO NAOLIY 40 301430 T89S-996-O1 —LhibT BBBz/>z/9B